HOUSE RESOLUTION No. 234 TO 
INQUIRE INTO AND CONCERN¬ 
ING THE OFFICIAL CONDUCT of 
EMORY SPEER, U. S. DISTRICT 
JUDGE FOR THE SOUTHERN 
DISTRICT OF GEORGIA 


STATEMENT AND REPLY 
of 

JUDGE EMORY SPEER 














ay 


MAY 8 





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JUDGE SPEER’S DEFENSE. 


To the Honorable Edwin Y. Webb, Chapman, the Hon, Louis 
FitzHem^y, and the Hon. A. J. Volstead, Members of Sub- 
Committee House Judiciary Committee: 

There is brief consideration of a general nature to which 
Judge Speer respectfully requests the attention of your 
Honorable body. 

Before its members will have received this defensive state-* 
ment, he will have been a judge for twenty-nine years. He 
had previously been appointed Solicitor-General by Hon. 
James M. Smith, Governor of Georgia. This was in 1873. 
He was elected to the Forty-Sixth Congress in 1878, and re¬ 
elected to the Forty-Seventh. He was then appointed 
ad interim United States District Attorney for the Northern 
District of Georgia. This was March 5th, 1883. He was 
reappointed at the next session of Congress, and was con¬ 
firmed by the Senate. He was then appointed Judge by Ches¬ 
ter A. Arthur, President, and was confirmed by the Senate 
on the 18th of February, 1885. There are two, possibly three 
other judges of the National Courts who have had service 
in their present stations a little longer. One of these is 
the Dean of the National Judiciary, the Honorable Don A. 
Pardee, the Senior Circuit Judge of the Fifth Circuit. 

The President who appointed Judge Speer, and every 
member of his Cabinet, are now in a majority whose num¬ 
ber will never be diminished. Of the members of the Sen¬ 
ate which confirmed him, but few survive. One is that great 
American lawyer, George F. Edmunds, of Vermont, for a 
quarter of a century a member of the Senate, and long 
Chairman of its Judiciary Committee, whose confidence 
then, unbroken since, has afforded enduring inspiration. 

Of the Ways and Means Committee of the House, Wil¬ 
liam D. Kelly, of Pennsylvania, John A. Kasson, of Iowa, 
Mark H. Dunnell, of Minnesota, William McKinley, Jr., of 
Ohio, J. A. Hubbell, of Wisconsin, Dudley C. Haskell, of 



2 


Kansas, Wm. A. Russell, of Massachusetts, Russell Errett, 
of Pennsylvania, J. Randolph Tucker, of Virginia, Samuel 
J. Randall, of Pennsylvania, John G. Carlisle, of Kentucky, 
William R. Morrison, of Illinois, the then young member 
from Georgia, is the sole survivor. 

Of the entire Georgia membership of the House of the 
Forty-Sixth and Forty-Seventh Congresses, only Inter¬ 
state Commerce Commissioner, the Hon. Judson C. Clem¬ 
ents, and Judge Speer survive. 

The Georgia Senators of that day are also gone. The 
’ incom!parable Benjamin H. Hill, the gallant and chivalric 
John B. Gordon; the attractive and persuasive Alfred H. 
Colquitt, the wise, sagacious and prescient Joseph E. Brown, 
have long ago joined the illustrious throng of that mighty 
generation to which they belonged. 

Then the Chairman of this Committee was a lad of thir¬ 
teen, and the other members little, if any, older. These 
facts are mentioned that the Committee may possibly re¬ 
flect how singular it is that with a tenure of service so 
long that now for the first time in American history, an 
American Judge has been subjected to the ordeal Judge 
Speer now endures. 

In that time also, mighty changes have been made in the 
duties of a judgeship such as his. When he was first ap¬ 
pointed, certain giants of the Constitution were yet asleep. 
The commerce power had been scarcely utilized, and the great 
Commerce Commission was yet unknown. No National 
enactments had been framed to control combinations in re¬ 
straint of trade; little provision had been made for the 
regulation of railroads; no safety appliances provided for 
the mighty army of unpretending heroes whose duty it is 
to handle the masses and direct the velocities which multi¬ 
plied make the momentum of civilization. The employee 
mutilated or perchance killed by the negligence of a fellow 
must then rely, upon the cruel rule of the English law, for 
Congress had not then framed the humanitarian act which 
now affords to millions of manly, kindly hearts the assur¬ 
ance of comfort for his loved ones if life or limb be lost by 


3 


such negligence of his fellow. Then the employer's liability 
act was not more novel and unknown than those settled 
principles of jurisprudence which now forbid the absorp¬ 
tion by holding companies of competing lines, which then 
placed communities, cities and states at the mercy of the 
voting trust. The Corsican Emperor himself was scarcely 
more irresistible than the Napoleon of Finance of that day 
and time. That the Government should interfere with rates 
of transportation was monstrous; that the courts or Con¬ 
gress should concern themselves about strikes, wages, or 
contracts of labor, was unthinkable. Paltry appropriations, 
it is true, were made for rivers and harbors. Contractors 
there were, but the morale of that Engineer Corps, which 
produced a Gilmore, and a Goethals, a Beauregard and a 
Lee, was deemed protection the most ample for all the pub¬ 
lic money Congress might appropriate for such purpose to 
advance the people's welfare. 

Norwas this all, involuntary servitude was deemed a thing 
of the past. Slavery had been long abolished. But so many 
former slave-holders and former slaves survived and so 
kindly was their mutual regard that peonage was impos¬ 
sible, and the peonage statute regarded as a nullity by 
many, and by all as without value and use. But a mighty 
change was coming. The United States Courts were soon to 
be brought closer to the people. Then, in the broad, splendid 
territory to which Judge Speer's duties extend, there were 
two places of holding the United States Courts. There are 
now five. Then few people had business in the courts. Now 
they hold their sessions in every section of the State. Then, 
too, the collection of debts, with rare exception, was re¬ 
mitted to the courts of the State. There was no Bankruptcy 
Law. Now the Uniform System has made the courts of the 
United States the collection and distribution agencies of 
the people, with all the labors and burdens of the most diffi¬ 
cult and thankless task which courts are called upon to 
perform. With the expanding of jurisdiction, and the 
widely enlarged range of topics therein involved, there also 
came wide increase of responsibility, and the ever enhanc- 




4 


ing danger of those resentments which attend judges 
charged with the ascertainment of crime, the detection of 
fraud, the regulation of corporate power, the protection of 
human liberty and the enforcement of obedience to law. 
Then also for the first time was there brought before the 
court, corporations and individuals, who because of wealth, 
influence and power could make the resentment of their offi¬ 
cials or of their attorneys seem threatening to the judiciary. 

A distinguished witness, the Honorable S. B. Adams, has 
testified in the hearing of the Committee, that no doubt Judge 
Speer (charged as we have stated with all of these increas¬ 
ing duties and dangers), was very much surprised to learn 
that his judicial services were unsatisfactory to a majority 
of the Bar. Judge Speer has yet to learn that fact, and ven¬ 
tures to question it. True enough, certain individuals have 
given testimony to that effect, but most of them have testi¬ 
fied with manifest intensity of feeling and bitterness of 
language and recklessness of statement which do not carry 
conviction to those trained in the ascertainment of impar¬ 
tial truth. The testimony of such m^en has given him pain, 
but no great surprise. He knows who they represent. He 
recalls that it has been his duty by proper, if effective judi¬ 
cial action, to occasion disappointment not only to their 
ambition but to their avarice. This duty has been cast 
upon him in case after case conferred by the expanding 
jurisdiction, in recent years, of the courts of which he is a 
judge, conferred by acts of Congress, made for the better¬ 
ment of the people, or ascertained to exist by decisions of 
the Supreme Court. It will be an easy task to turn to the 
record and precisely locate the occasion and cause for the 
calumny, and discover that every important detractor was 
the professional advocate and representative of the evils 
which it had been and is the purpose of Congress to annul 
and destroy. 

The Committee should recall that this scrutiny extends to 
Judge Speer’s entire judicial life. It began with an incident 
twenty-eight years ago. It closed with another which trans¬ 
pired months after the department’s detectives were on the 


5 


ground sedulously interviewing such enemies as every effi¬ 
cient judge must make. 

While this is true, and while Judge Speer was not in¬ 
formed of the accusations against him, while he was per¬ 
mitted to call no witnesses, and only definitely apprised that 
he would be permitted to testify himself a moment before 
he was sworn, it is submitted that from the records, and 
with indisputable proof, he has met and confuted every im¬ 
putation on his honor as a man, on his integrity as a judge. 
The best evidence of judicial action is the court record. It 
will be seen that where this was possible, in no appeal to 
the record for vindication has such appeal failed. No semb¬ 
lance of moral turpitude or self-seeking is shown. True, 
twenty-eight years ago, with meagre salary, in his strug¬ 
gling young manhood, a loan was offered him by one, then 
a personal friend; it was accepted, and when demanded, 
it was instantly repaid. Of self-aggrandizement this is the 
only pretence in the record, save the vague suspicion of one 
characterized by the star witness for the prosecution as the 
false and mentally unbalanced Embassador of his Satanic 
Majesty on Earth. 

It is true that a nun^ber of attorneys have expressed un¬ 
favorable opinion of Judge Speer’s judicial characteristics. 

Probably the most pronounced of these was Mr. Alex¬ 
ander Lawrence. He said much of Judge Speer, but it is 
all summed up in this, '‘my estimate, my judgment about 
him, that the worst thing about him is that he is a misfit.” 

Mr. FitzHenry: A misfit? 

Mr. Lawrence: Yes, sir. 

Mr. FitzHenry: In what way? 

Mr. Lawrence: He should never have been a judge; he 
has not got the judicial temperament; he has not got 
the judicial mind; he has not got the judicial char¬ 
acter. I believe if he had remained at the Bar he would 
have made one of the greatest advocates that ever 
lived, because he is talented in that line, and talented as I 
have never seen anybody else. He is the best cross-exam¬ 
iner of a witness I have ever known; he knows the jury. 


6 


knows how to play on their passions, on their prejudices, as no 
living man that I have seen could do it; he has a faculty 
for marshalling evidence that I have never seen another 
living man able to marshal; and in that Green & Gaynor 
case he charged that jury for eight hours, and I will chal¬ 
lenge any six prosecuting attorneys in the United States, from 
the Attorney General down, all of them together, to take 
that mass of testimony taking three months^ time that Judge 
Speer heard, and then put it down in as ingenious an argu¬ 
ment against the defense as Judge Speer put it in that thing. 
It was a masterpiece of oratory, but a very poor thing when 
you come down to look at it from the judicial standpoint.^’ 
(Stenographic Record, pp. 1498-9.) 

The trouble with this statement of Mr. Lawrence is, 
he seems not to appreciate the duty of a United States 
Judge in his charge to the jury. Said the Supreme Court 
of the United States in Nudd vs. Burrows, 91 U. S., p. 439: 

‘Tt is the right and duty of the court to aid the 
jury by recalling the testimony tb their recollection, 
by collating its details, by suggesting grounds of 
preference where there is contradiction, by directing 
their attention to the most important facts, by elim¬ 
inating the true point of inquiry, by resolving the 
evidence, however complicated, into its simplest ele¬ 
ments, and by showing the bearing of its several 
parts and their combined effect, stripped of every 
consideration which might otherwise mislead or con¬ 
fuse them. Constituted as juries are, it is fre¬ 
quently impossible for them to discharge their func¬ 
tion wisely and well without this aid. In such cases, 
chance, mistake, or caprice may determine the re¬ 
sult.” 


This was the unanimous holding of the great court. It 
has never been departed from. The practice is exasperating 
to gentlemen fresh front the state courts where the Judge 
cannot in the slightest respect remind the jury of any 
feature of the evidence or what has or has not been proved. 
The dumb act,” as Chief Justice Bleckley denounced it. 


7 


was enacted in 1850, and was doubtless designed by some 
member of the Bar whose professional services, like those 
of Mr. Lawrence, were often enlisted in behalf of those who 
sit in the seats of the mighty, and who are yet occasionally 
indicted for crime, fraud or other wrongs. It is the best 
opinion of the Georgia Bar that this act has done more to 
make the enforcement of the criminal law uncertain, than 
all other causes put together. From this may result the un¬ 
happy fact that in one Georgia city there are more homi¬ 
cides in one year than in the United Kingdom tof Great 
Britain and Ireland. The charge to the jury in the Green & 
Gaynor case, it is true, presented a difficult task. It must 
consider the engineering incidents of twenty-five years and 
many questions novel to the ordinary administration of jus¬ 
tice. It was approved by a majority of the Circuit Court of 
Appeals and not disapproved on application for certiorari 
by the Supreme Court of the United States. It is reported in 
146 Fed., 803, along with other rulings made during that 
arduous trial, the result of which affords, it is submitted, an 
invaluable precedent for the protection of the treasury. 

The Committee will of course recall that three of the 
witnesses who testified against Judge Speer with greatest 
acerbity were Mr. W. W. Osborne, Mr. A. A. Lawrence 
and Mr. P. W. Meldrim. They were all three of counsel for 
Green & Gaynor, and the result of the trial was doubtless 
far and away the most bitter disappointment of their pro¬ 
fessional lives. Two of these gentlemen, Messrs. Osborne 
& Lawrence also represented Miller Brothers, the Phila¬ 
delphia grain merchants, who had been given rebates on 
the transportation of their commodities by the Merchants' 
& Miners' Transportation Company, the Atlantic Coast 
Line, and the Seaboard Air Line By. The two railways 
pleaded guilty, and were fined two thousand dollars each. 
Mr. Meldrim was of counsel for the Atlantic Coast Line. 
The Miller Brothers' case went to trial, and after a careful 
and patient hearing, the senior member of the firm was con¬ 
victed. Doubtless these also were clients of an invaluable 
sort. The result of these and other cases where Mr. Law- 


8 


rence did not achieve his accustomed success impels him to 
the belief that the Judge is a ‘^misfit.’^ Whether or not an 
individual is fitted for the judgeship is committed by the 
organic law to the President with the advice and consent of 
the Senate. The conclusion of the constitutional authority 
is final. 

Mr. Osborne refers on pages 2080-2, Stenographic Record, 
to the endorsement given Judge Speer by the Savannah Bar 
for promotion to the Circuit Court of Appeals. 

This, fortunately, is a record of the Department of Jus¬ 
tice. The seal of the Department shows it. Of this the 
Committee will doubtless take cognizance. It has been taken 
from the files of the Department as the letter of the Appoint¬ 
ment Clerk will show. It was made in 1904. Judge Speer was 
fifty-five years of age. At that age a man’s character is al¬ 
ways formed. He had been nineteen years on the bench; 
he had then served two-thirds of his judicial life; the Cen¬ 
tral Railroad litigation had ended. Most of these witnesses 
had been members of the Bar since his appointment to the 
bench. Lawrence had been a practitioner before the court 
for thirteen years. Osborne for a longer time; Colding, 
Adams, Twiggs, Mackall and Meldrim from the first. The 
testimonial to the President of Judge Speer’s reputation as 
a Judge is deliberately and carefully prepared. 

And now to the record. It is herewith appended. 

Upon this testimonial, produced with the exactness of 
the photographer’s and engraver’s art, the original of 
which Judge Speer holds and offers to submit to the Com¬ 
mittee, he appeals to the non-partisanship and sense of jus¬ 
tice of these Representatives of the American people. Fol¬ 
lowing the testimonial of the members of the Savannah 
Bar commending him, is a testimonial not less prized from 
the business community of Georgia’s great seaport city, and 
let it be added that of the great merchants, manufacturers 
and other business men, despite the intense interest in the 
investigation, and its country-wide publicity, not one ap¬ 
peared to utter a word of disparagement of Judge Speer. 
Let it also be added that of the lawyers whose names are 


9 


signed, most of whom survive and yet reside in Savannah, 
only a very few appeared, and they mainly the representa¬ 
tives of those mighty interests which the legislation of Con¬ 
gress has subjected to the jurisdiction of the National 
Courts. 


Anton P. Wright, ^ 
iinii (Cicnma^lcnr tti 

Savannah,Ga. 

‘ ^an. 31st, 1903. 


To- 


The President, 

Washington, D. C, 


Sir:- 


The undersigned have the honour to hand you herev/ith 
a memorial from the Savannah Bar urging the appointment of 
the Honorable Emory Speer to the bench of the United States 
Circuit Court' of Appeals for the Fifth Circuit whenever a 
vacancy thereon may occur. 



Very respectfully. 








10 


To *■ 

The Pr»;sident:- 

Thc public prints having advised us of the contemplated 
reiirement of the Honorable Andrew P.McCormick from the bench 
of the United States Circuit Court of Appeals for the Plfth 
Circuit, the undersigned members of the Savannah Bar respect¬ 
fully present for your favourable consideration the name of 
the Honorable Emory Speer for the’vacancy when it may occur. 
The long and faithful service of Judge Speer on the bench of 
the District Court during which time questions of the utmost 
moment have been settled by him with unusual ability indicat¬ 
es him as pre-eminently fitteli for the new honour with which 
his nane is now associated. 

During his administration this community has not only 
benefitted by the singular ability and clear thourht which he 
has brought to bear upon the issues which have been submitted 
to him, but our observation justifies us in declaring him one 
of the most humane of judges. During his term not only has 
crime diminished but his eloquent charges to the juries Im¬ 
paneled in his court have done more than any other influence 
to make the people of Georgia feel that the Federal Court is 
one of their own institutions. 

The variety of novel points which have arisen in the cas¬ 
es tried by him, many until then undetermined, have demand¬ 
ed an acuteness of intellect and patience of research rarely 
exacted in’the judicial career of any judge. His success -In 
this direction, illustra-fring his pre-eminent fitness for the 



11 


bench of the Circuit Court, is of record in the published re¬ 
ports; the daily evidences of usefulness to the public .and 
consideration for the misguided and helpless are matters to 
which it is just that we should invite your attention since 
they appear only inferentially in the plain statement of judg¬ 
ments . 

V/e beg to add that the state of which Judge Rpeer is an 
honoured son has never had a native bom citizen upon the Cir¬ 
cuit bench. With the great.interests which are necessarily 
at stake in the Circuit €otirt of Appeals it would seem to be 
demonstrated that Judge Speer, who otherwise qualified, has 
that intimate local knowledge which enlightens the labours of 
a judge in any event, becomes a natural successor to the emi¬ 
nent jurist who is about to retire from the public service. - 










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To the President: 

As members of the business community of Savannah, ve 
have learned, with Interest, of the contemplated elevation of 
the Honorable Emory Speer to the bench of the Fifth Circuit 
Court of Appeals. During his long service as the Judge of 
this District the proceedings of his Court have been marked 
with a dignity which has commanded respect, and his firm and 
humane dispensation of the law has at once diminished crime 
and tempered its consequences to the ignorant and the lowly. 

His quick and clear apprehension of the intricate constitution¬ 
al and commercial questions which have been constantly sub¬ 
mitted for his adjudication, has invited the confidence of the 
business public, and the patriotic utterances, expressed witn 
a singular and forceful eloquence, with which, from time to 
time, he has recalled to the people of this State the great 
principles which underlie the Republic have had an influence 
for good, far-reaching and permanent. With a full appreciation 
of the loss which this community will sustain in the removal of 
this distinguished jurist to other scenes of labor, we trust 
that this recognition of his great ability may come to him at 


this opportune time when he is in the fulness of his powers 
and of his usefulness. 






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Judge Speer begs also to respectfully invite the atten¬ 
tion of the Committee to the fac similes of testimonials from 
the Bar of Augusta, the Chambers of Commerce of Atlanta 
and Macon, and particularly to those of other representa¬ 
tive bodies, and many distinguished Americans. 


iir. Presilent:- 

The undersigned members of the Augusta Bar present for 
your consideration, in the event of the retirement of Judge McCormich. 
the name of Honorable Emory Speer, the present Judge of the United 
States Court for the Southern District of Georgia, to fill the vacancy 
on the Circuit Court of Appeals. 

We desire to bear testimony to Judge Speer's great learning, 
scholarship and distinguished ability. As a Judge, his greatest charac¬ 
teristic is perhaps his love for substantial Justice and Equity. It is 
a common saying among the profession in the Southern District of Georgia 
that no innocent man is ever convicted in his Courts and the guilty 
rarely escape. The lawyer with a meritorious cause does not hesi¬ 
tate to enter his Courts, while those with bad causes are usually wise 
to avoid them. 

The discipline and decorum uniformly maintained by Judge 
Speer in his Courts has done much to establish the dignity and respect 
for the Courts and the majesty of the Law in this District. 

His appointment to the Circuit Court of Appeals will bring to 
this Court the ripe scholarship, great learning and eminent ability of 
one of the ablest jurists of the South, and would be a deserved promo¬ 
tion. 

In the fevent of a vacancy, we respectfully ask that Judge 
Speer be appointed to the Circuit Court of Appeals. 




21 








22 


Augusta, Georgia, January 26, 1903* 



Hon. Theodore Roosevelt, 

President United States, 

Washington, D. C. 

Mr. President;- 

The friends of Honorable' Emory Speer of Georgia 
are very desirous of having him promoted to the Circuit bench, and 
we take the liberty of assuring you that if within your wisdom you 
should give him this appointment it will meet the. unqualified wishes 
and desires of the business men, bankers and manufacturers of this 
city and community. 

We have known Judge Speer personally for many years. 

He is a man of unquestioned ability, absolute fairness and impartial¬ 
ity, and has always undertaken to consejrve the Interests and rights 
of persons and property when' they have been committed to his care. 

Respectfully, 









President & Treasurer, 
Graniteville Mfg. Co. 







The f l^^rs Loan 4 Sovlngs Binh. 




Georgia Railroad Bank, 

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D£ PUTiCS 
j P ro&TCR 
C e.AOAM^ 

Office 


0Q February 7, I903 . 

i 

To-the President, 

Washington, D, C. 

Sir; 

1 have the honor to transmit you herewith a copy of 
a resolution adopted hy the Mayor and General Council of the City 
of Atlanta, Georgia, in regard to the appoinemtn of Judge Emory Speer 
as Justice of the Circuit Court of Appeals of the United States.. 

I have the honor to he 

Yours truly, 



EVAN P HOWELL,MatOW 

W J.CAMPBELL.CityclCPK. 



Clerk of Council 







24 


Council Chamber, Atlanta, Ga., Feb. 2, 1903* 


By Councilman Winn: 


V/hereas it is probable that a vacancy will soon occur on the 
Circuit Court bench by the resignation of Judge McCormick of the Circuit 
Court of Appeals of the United States, and 

V/hereas the name of that able Georgia Jurist, Judge Emory 
Speer, has been prominently mentioned in connection with the position,- 
the distinguished judge of our immediate district being understood as 
not desiring his ovn name considered in connection with the vacancy,- 
Nov;, therefore, be it resolved that although Atlanta is not 
within the im..ediate jurisdiction over which Judge Speer has presided 
for so long, administering justice with impartial wisdom, the Council 
and citizens of Atlanta recognize his eminent fitness for the position 
and feel that his appointment as Justice of the United States Circuit 
Court of Apoeals would be a deserved honor to an able and distinguished 
citizen of Georgia, in the appreciation of 7;hich the citizens of Atlanta 
would share in common with the citizens of the entire State of Georgia. 

Resolved further that a copy of these resolutions be forward¬ 
ed to the President of the United States as a request for the appoint¬ 
ment of the eminent Georgian, whose ability, wisdom and experience 
qualify him in every way to v/orthily discharge the duties of the office 
of Justice of the Circuit Court of Appeals of the. United States. 


Georgia, Fulton County, 
City of Atlanta. 


I, V/. J. Campbell, 



Clerk of Council of the City of Atlanta, 


do hereby certify that the above is a true copy of a resolution adopt¬ 


ed by the General Council of the City of Atlanta on February 2, 1903 
and approved by the Mayor on February 6, I 903 , the original of which 
is of record and on file in my said office. This February 7,1903. 
Done v/ith my hand and official seal. 



25 


To the preeident: 

I have the honor to transalt to you the followii^^; 
copy of preamble and reBolutions unanlmouBly adopted at the 
regular meeting of the Mayor and Council of the City of Ma¬ 
con, held January 27th, 1903, 



WHEREAS, we note that the name of our distinguish¬ 
ed fellow citizen. Judge Ebaorj/ Speer, has "been prominently 
mentioned In connootion with the vacancy on the Circuit Coiirt 
Bench, caused by -the resignation of Judge McCormick, 

BE IT RESOLVED, by the K^yor and Council of the City 
of Macon, that re point nth pride and pleasure to his long re¬ 
cord os usefulness as District Judge of the Federal Court; to 
his eloquent and patriotic charges to the Federal Jurore, thus 
creating and cementing in the minds and hearts of our people a 
greater pride and larger love for our conmon country, and its 
wonderful system of free government; To the fairness which has 
marked the suimlnistration of Justice in his Courts, causing it 
to be said-of him by one of Georgia’s foremost sons, "that no 
innocent man was ever punished, however humble, and no guilty man 
was ever permitted to go unwhlpped of Justice, however prominentk 
RESOLVED FURTHER, That a copy of these resolutions be 
forwarded to the President of the Ihaited States,, urging upon him 
the appointment of this distinguished son of Georgia, who is so 
eminently well qualified to fill the high and important office 
of Circuit Judge, 


Macon, Ga,, January 27th, 1903 



26 


Chamber of Commerce 

MACON, CEORCIA. 


DIRECTORS 

I B ENGLISH H M. SMITH 

GCOBGE A SMITH HtNRV HORNC 

A t. CMAAPCLL L S. OURt 

B C.HAZLCHURST S I^^ONtS 

ABC LESSER 


OFFICERS 

E L. martin. ^NCStOCNT 
A C FELTON.Jn t»T ViCf-FRCt T 
R J 7AVLOR. 2HO ViCC'R«tA'OIRT 
B S. PORRER. Tncasurcm 
EUGENE ANDERSON, SCCRCTAR* 


February -^bn, ly03. 


•i'o His Excellency 'Iheodore Roosevelt, 

President of the United States, 

Washington, D.C. 

Sir: - 

At a very large and ethusiastic meeting of the Chamber of Commerce 
■which comprises the representative business men of the community, the 
inclosed resolutions were unanimously adopted, and I, as secretary, 
was instructed to forward them to you at once and re.iuest your kindlj 
consideration of them. 


Yours very tiuly. 





27 


ornccRs 

C. L MARTIN. PaCSIOCMT. 

A C rCCTON. JA.. i»T ViCC-fV>CS't. 
R J TAYLOR, 2H0 ViCC'RACt■ DCMT. 
S S. POPPER. Tacasuaca 
EUGENE ANDERSON Sccactaav. 


Chaiviber of Commercc 

MAOON, GEORGIA. 


DIRECTORS 

I B ENGLISH. H M SMITH 

GEORGE A. SMITH. HENRY HORNE 

A. E. CHAPPELL L. 8 DURE. 

R. C. HAZLCHUR8T. B L. JONES. 
ABC LESSER. 


Resolutions introduced by J.W. Oabaniss. 

"V/hereas, it is believed that there will soon be a vacancy in the 
orrice of Judge of the Circuit Court of the United States for the 
Fifth Circuit caused by the retirement of Hon. A.P. McCormick; therefore, 
be it. 

" Resolved by the Chamber of Coirjnerce of Macon, Ga. , that we 
respectfully commend to the president for appointment to such vacancy 
the Honorable Emory Speer, who has won the perfect confidence of the 
people of this section by the I’aithful and forceful discharge of his 
duty as Judge of the district Court oi' the United States for trie Southern 
District of Georgia, and wno has won tne adn*iration of the people by his 
high character and oriliieuit career as a public-spirited citizen; 

"'Resolved further, that it is the sense of this body that by virtue 
of his native ability, his scholarly attainments and his successful 
experience as a lawyer and a Judge, he is pre-eminently fitted for the 
^office; and by reason of his wide reprutation as a distinguished Jurist 
and a patriotic citizen, his appointment would give entire satisfaction 
to the public at large; 

"Resolved further, that the secretary forthwith transmit to his 
Excellency, Theodore Roosevelt, President of the United States a copy 
of these resolutions." 







28 


CHAMBeit OF COMMEROE 

MACOHi QCOfeOIA. 

DIRECTORS 

t 8 CNOLISH H M SMITH 

CeOPGC A SMITH HCNPY HORNC. ^ 

A C CHAPPCLL , L. 8. OURC 
P C HAZLCHUP8T B L. JONCS. 

ABC LCS8CR 

Resoiutiiozis introduced by H.T. Powell. 

"Resolved oy the Chamber of Commerce of Macon, Ga., that the 
president be respectfully urged to appoint the Honorable Marion Srwin 
to fill the vacancy in the District Court judgeship that m^y' be caused 
oy such promotion of Judge Speer. 

"Resolved further tnat Ivor. Erwin by his services as United States 

% 

attorziey for this District has showxz himself to be a lawyer of the 
highest order of integrity, ability and learning, and by his career 
as a citizen has won the utmost confidence and esteem of the people' of 
this district. 

"Reserved further, tnat by his experience as United States 
attorney ana through nis familiarity with the federal law and procedure 
acquired in a varied and successful law practise he is eminently 4halii'ied 
to fill the office ^f United States judge. 

"Resolved'further, that it is the sense of this oody that the 
affairs of the office of the United States attornet for this district 
during Mr. Erwin’s incumbency have been faithfully and efficiently 
administered to the satisfaction of the people of this district, and 
that his appoiiitraent to the office of Uziited States Distx-ict Judge would 
give general satisfaction to the people at large. 

"Resolved furtner that a copy of these resolutions be furnished 
for presentation at the proper time to His Excellency, Theodore Roosevelt, 
President, Of the Uiiited States." 


OFFICERS 

, C MARTIN. PflCStOCNT 
A C. FCLTON JH , l»T ViCC P»»t« T. 
P J TAYLOR. 9NO V 1CC*PnCSiOCNT 
S S POPPCR Tf»CA8UAC« 
euCCNt ANOCRSON. SCCRCTanv 


29 


Lane & Park, 



Macon, ga. 


Macon, Ga., Jan. 29 , I 903 


His Excellency, Theodore Roosevelt, 

Washington, D. C. 

Mr. President 

I have the honor to present herewith a duly certified copy 
of the resolutions that were unanimously passed by the Bar Association 
of the City of Macon, in meeting assembled, on January 25th, 1903 , en¬ 
dorsing Judge Emory Speer, for the position of United States Circuit 
Judge for the Fifth Circuit. As Secretary I was instructed to forward 
to your Excellency a copy of these resolutions, and it gives me great 
pleasure to hand you the same herewith. 


With great respect, I am, sir, 
Vpry sine 






30 


Be it resolved by the"Macon Bar, in meeting assemhled, as 
follows: 

We heartily recommend Judge Emory Speer for appointment to the 
office of United States Circuit Judge for the Fifth i ircuit, on the 
voluntary retirement of Judge Andrew p. McCormick. 

The distinguished and useful career of Judge Spcor as United 
States District Judge, and his high character, broad patriotism, 
intellectual strength and scholarly attainments, mark him as a man 
eminently worthy to be promoted to higher honors and a wider field 
for usefulness in the Federal Judiciary. He has presided over the 
Courts of this District with commendable dignity and courtesy, and 
has administered the law with firmness without severity. Intensely 
loyal himself to our common country and devoted to the people of his 
native state, he has imbued the people of his District v/ith a high 
respect for the laws and Courts of the United States and of* the 
State of Georgia. 

In his public addresses, he has shown himself to be a man of 
learning and ability, profound in thou^t and sincere in patriotism. 

As Dean of the Mercer University Law School, he has contributed 
largely to the elevation of the standard of professional excellence, 
as well as reflected honor upon himself. Of his lectures on the Con 
stitution the late Edward J, Phelps, of Vermont, has written "The 
lectures are the best introduction I have ever seen to ihe study of 
the Constitution of the United States, They compress great deal 

into a small compass, with an eloquence and lucidity style that 

make them fascinating as well as instructive." 

As a Gitizen ahd Judge, we believe Honorable E'a'iv,^ \5peer to be 
worthy and deserving of appointment to a seat on t.ve Un:' ".ed States 
Circuit Court Bench, and we request the Presiden* * » Secretary of 
the Macon Bar Association to forward a certifiei* i. of these 

I 

resolutions to the President of the United Stat^eu 5 ur petition 


31 


that he be so appointed, and our testimony in support thereof. 

(Signed) Andrew W. Lane, 

Secretary. 


I, Andrew"W, Lane, Secretary of the Bar Association of the City 
of Macon, do hereby certify that the above and foregoing is a true 
and correct copy of a resolution unanimously passed by the Bar Associa¬ 
tion of the City of Llacon, in meeting assembled, on the 28th day of 
January, 19 03 • 

WITHESS my official signature this the 29 th day of January, 


1903. 




in-i/yy 





Secretary Bar Association 
City of Macon. 




MERCER UNIVERSITY, 

P D. POLLOCK, PmiiotMT 

Macon, Ga.,_ Jan, 29,_1904 


To His Excellency, Theodore Roosevelt, Pres, of U. S., 

Washington, D. C. 

My Dear Sir:- 

• Wo beg to transmit the enclosed preamble and resolutions concern¬ 
ing the character, work, and fitness of Judge Emory Sneer. 

We should greatly appreciate any recognition of the distinguished 


services of Judge Speer. 













32 


MERCER UNIVERSITY, 

P. D. POLLOCK, 



CLi90»/. 


Whereas, Having seen In the dally press frequent nentlon of the name of Judge 
Emory Speer, a distinguished citizen of our city, in connection xvlth the Clr- 
cvit Court of Ap ■'eals, as a successor to Judge McCormick, and— 

Whereas, Judge Emory Speer, for the lov^ he bears to the cause of legal learn¬ 
ing has been the Dean of the Law Faculty of Mercer University for a number of 
years, giving generously of the spare moments of a busy legal career, to the 
instruction of hundreds of young men in the interpretation of the Federal Con¬ 
stitution, and— 

Whereas, This service has been done in such a high minded and patriotic way as 
to be of great value to the young men who have been under his tuition, and has 
also been of great value to Mercer University. 

Therefore be it rejolved by the Prudential Committee of Mercer 
University, that we ^vish to give public testimony to the value of his services 
as Dean of the law department of Mercer University, and we wish also to Join 
the great mass of our fellow citizens in ren erlrig testimony as to his dis¬ 
tinguished ability as a Judge—and as an Orator, Scholar, and Jurist. 







33 


MACON, Bibb County, GEORGIA. 


January 15 th, I 903 . 


To the President, 

Washington, D. C. 


On January 1st, 1903, the Emancipation Association of this 
the home county of Judge Einory Speer, while celebrating the birth¬ 
day of freedom, unanimously and enthusiastically passed the following 
preamble and resolutions: 

^ereas, in his great speech at Buffalo, Nev/ York, before 
the Independent Club, on the 19 th day of December, 1902, 
Judge Emory Speer of our City gave utterance to sentiments 
for the weal of all of our people, and especially for the 
colored race, that have attracted the attention of the 
entire country. 

Therefore, Be It Resolved, that the Emancipation Asso¬ 
ciation of Bibb County tender thanks to Judge Speer for his 
advocacy of the enactment of impartial laws for white and 
black alike, which will adinit to the franchise the intelli¬ 
gent of both races, and exclude the ignorant and worthless. 

Resolved, Second, That the above sentiment of the great 
orator is akin to that fairness v;hich has ever been given 
to the unfortunate of our race when arraigned in Judge 
Speer's court. 

Resolved, Third, that a committee of nine be appointed 
to tender in person to Judge Speer a copy ot these resolu¬ 
tions ." 

Since the action of the Association, and the performance 
of its pleasant duty by the Committee, we have learned through 
the press that Judge McCormick, of the Circuit Court of Appeals 
may, at some early date, retire from active service. 

We are so familiar v/ith the high esteem in which Judge 
Emory Speer is held by all the colored people of the Southern 
District of Georgia, and of the entire State as v/ell, that we 
take the liberty of asking, on behalf of all of our people, 
that in making an appointment to the Circuit Court of Appeals 
the record of Judge Speer for a fair and impartial administration 
of the lav's during ei^teen years, together with his eminent 





34 


( 2 ) 

fitness in every way for promotion, be given the most favorable 
consideration. 

While expressing the sentiments of our own people es¬ 
pecially, we are not unmindful of the fact that the learning, 
ability, fairness and courage of Judge Speer are the admiration 
of all classes of the people. 


Respectfully, 


(Z^. /f.b. 


Secretary 




- - 


President 


surer 






ot //* 

Executive Board Emancipation Association. 



% 


6o 



DEPARTMENT OF JUSTICE. 

CMAMSE R S or 

eferee in bankruptcy 
buffalo, n.y 


January 21st, 1903. 


My Dear Mr. President.:- 

Georela to New Yorlc. DuJ,' in 

wiL^the^o^i^T law, I have been much struck 
Witt the opinions of the Hon. Emorj. Speer 

judge of the Southern District"'©? Teolprl! 

He was recently in Buffalo as the guest of the 
Independent Club, whose guest, as you will 
ranemberj you once were, and also of the 

I from 

nm that there is soon to he a vacancy in the 
Circull? Court of Appeals of^tlje^ifth Circuit:, 
and tnat he is a candidate foi^^he poWfl^^^ 

Judge Speer made a profound impression 
while here^ and his standing as a friend of 
a hroad interpretation of the harJcruptcy law 
is recognized hy everyone whose duty it is to 
administer it. That the Circuit Court of 
Appeals of that Circuit is not_inclined to such 
an interpretation is sometliing which many of 
us have deplored. 

As one of those administers, I sin¬ 
cerely hope you v;ill-he able to place Judge 
Speer where he my assist in that hroad 
interpretation, and I kno?/ that, in so doing, 
you will honor a representative of the South 
whom we have all hut adopted in: this Northern 
city, and who iSj I know, a sincere admirer 
of your good self and the present administra¬ 
tion. 


Yours very, sincerely, 


Hon. Theodore Roosevelt 
President, 

Washington, 


D. C. 




36 


SMVTHt U£E &. FPOST. 

At’OonCvS ANO CoUNSCtLO»» 
* «, » eBOAo s^ntcT 

Cmaolcs^oh S C 

kU'iyST'NC T 


r«AMK A r«OS» 


To the President, 

y/ashington, D. C. 

Sir; 


Charleston, S. C., February 6, 1903- 



I understand that the friends of the Honorable 
T'xnory Speer, United States District Judge for the Southern District of 
Georgia, have presented his name to you for the position of United 
States Circuit Judge for the Fifth Circuit, soon to be made vacant by 
the retirement of Judge McCormick. 

I sincerely trust that my information is correct. 

Although not a member of the Georgia Bar, my professional 
engagements have brought me for years into intimate knowledge of many 
cases of importance pending before Judge Speer, and I have had the 
pleasure of appearing before him and arguing, matters of importance. 

I therefore know Judge Speer thoroughly I'^ot only personally 
as a cultured gentleman, but also by reputation, and through his 
published decisions. He is regarded by the Ear in this section of 
the country as an able and learned jurist, as a lawyer of keen and 
quick perception, and as possessing all the qualities which make up 
an able, upright and hard working Judge. In this opinion I heartily 
concur: he will be not only an ornament, but a useful addition to the 
Bench of the Circuit Court of Appeals of the Fifth Circuit, should 
ne be appointed thereto. 

It gi-o-es me great pleasure therefore, and 1 speak, not only 
for myself, but for the Ear of South Carolina, most of whom know Judge 
Speer well, to eainestly and respectfully urge upon your Excellency 
his apoointment to the Circuit Bench, and to express the hope that he 
may long be spared to fill this important position, with the credit 
which we know he will bring to it. 

Yours respectfully, 


[III 


ATS-EJP 



37 


LAW OCTtCES OF 

MOOT SPRAGUE, BROWNELL & MARCY. 

A5 EoiE COUNTY Savings bank building 


At»wN^''PT MOOT 
HENRY w SPRAGUe 
GEORGE F BROWNELC 
WILLIAM L MARCY 



The President, 

Washington, D. C. 

My dear Mr. Roosevelt:- 

Judge Emory Speer, of Macon, Ga., recently 
spoke in our city before the Independent Club, upon the reconstruction 
era and the present outlook in the South. He also spoke before the 
Lav/yers' Club upon the Federal Extradition Law as compared with the 
State Extradition. 

I was present on each occasion, and had the advantage or 
hearing him, and of making his personal acquaintance. The impression 
of Judge Speer which I had formed from reading his opinions and address¬ 
es heretofore, was more than confirmed by listening to him upon the 
great topics considered by him in these addresses. I am fully persuad¬ 
ed that he is a patriot in the highest sense of the word, and that he 
is a lawyer and Judge of character, integrity, learning and ability 
quite above the ordinary range of lawyers and judges. 

I learn that he is being urged for the vacancy in the Circuit 
Court of Appeals in the Fifth Circuit, and I take the liberty of sug¬ 
gesting that if you appoint him lo fill this vacancy you will make 
another appointment that will commend you to all good people in the 
South, in fact, all good people everywhere, precisely as your appoint¬ 
ment of Governor Jones of Alabama has already won warm commendation 
from the Bar and the people. You should always promote Judges like 
Judge Speer, where that is possible, precisely as you are promoting 


Judge Day. 


Very cespectfully yours. 





38 


JOHN SKEL TON WILLIAMS, 

President. 



Seaboard Air Line System, 

©ffice of tbe ipresibent. 


HICnUOND OFFICE, No 9tt E MAIN ST. 

NEW YORK OFFICE, No. If WALL ST 


Nev/ York, January 30» 1903 


To. the President of the United States, 

Executive Mansion, 

.Washingon. 

I- am informed that the name of Judge 

Emory Speer, of Georgia, has been suggested for a vacancy on 

the Circuit Court of Appeals, Fifth Circuit, caused by the 

retirement of Judge A. P. McCormick. As the representative 

of large interests in several States of the South, I have 

had opportunity to learn much of Judge Speer's ability and 

conduct as a Judge and of his standing as a citizen. 

I am satisfied that his appointment would be highly 

acceptable to conservative and thinking people, of both 

parties, of this entire section. 

He is one of the most brilliant lawyers of the Georgia 

Bar, and has made a very strong and conspicuously fair Judge. 



39 

Slafe xjf (^tazoix, 

^jcrruIitTi: 

^lanbu January 26, 1903 . 


To the President: 

It gives me great pleasure to add my indorsement 
to the suggestion of Judge Emory Speer for the vacancy on the 
Circuit Court of Appeais which will be occasioned by the retire¬ 
ment of Judge McCormiclc. Judge Speer is pre-eminently qualified 
for this position, and his appointment would be gratifying to the 
bar and the people generally of this State. 

Por ten years I occupied the position of Attorney-General 
of Georgia, and during that time had many important cases before 
Judge Speer as U. S. Judge for the Southern District of Georgia, 
which gave me ample opportunity to recognize his eminent ability 
for judicial station, and for that reason I unhesitatingly recommend 
his promotion. 


Very respectfully, 




lit (iScjFroia. 

^Iiihn (II. 

February 2nd, 1903> 


Mr, President 

Vlth thousands of other true and loyal citizens of 
Georgia I commend to your favorable consideration the promotion of 
Judge Emory Speer to the Judgeship of the Circuit Court of Appeals, 
His qualifications as Judge, and his character as a man, imminently 
fit him to fill the hl^ position. 


Respectfully, ^ 

< 2 . 


Attorney General. 




40 


.\ltiniuni '6 (OfHfr. 


B--678 

Augusta, Ga., February 2nd,1903 






TO THE PRESIDENT OF THE UNITED STATES. 
V/ashington, D. C. 


•Mr. President:- 


I have intimately knovm the Honorable Emory Speer and 


his forebears from my boyhood. As a member of the Bar and active 
practitioner in Judge Speer's district I have known him as a man and 
Judge since his appointment to the Judgeship. 

In the interest of the public service, therefore, I beg respect¬ 
fully to add my endorsement of his hi^ qualification and fitness for 
promotion to the Judgeship of the Circuit Court of Appeals for the 
Fifth Circuit. 

Judge Speer’s broad culture and profound learning in addition to 
his unusual attainments as Laviryer and Judge, mark him as preeminently 
fit for this high station. 

Although his family in this and past generations has contributed 
to the public servicq of this State many illustrious sons, none of 
them has added greater lustre to the name and to the public service 
Df the Commonwealth than has this later representative of that honored 
Georgia family. 

Though a faithful and loyal Republican when nearly all his personal 
and family friends and associates are Democrats he nevertheless retains 
their respect and affection. As one of the latter I feel authorized to 
say that his appointment v/ould meet with universal favor at the hands of 
the Bar and people of the State. Even were the appointing power to 
take into consideration Democrats as well as Republicans Judge Speer 
would on his own merits still stand in the forefront of the Eliglbles 
in the entire Fifth Circuit. 

I have the honor to be. 


Respectfully 








41 


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46 



^xript 




'^jxrksuxtmiiSg, ^IxrtiUn. 


Hon, Theodore Roosevelt, 



February 2*, 1903. 


Washington, D.C. 

Dear Sir:- 

The name of Honorable Emory Speer, United States Judge for 
the Southern District of Georgia, has been presented by his friends 
for promotion to the Circuit Court of Appeals for the Fifth Circuit, 
under the notion that there would be a vacancy shortly through the 
voluntary retirement of Judge McCormick, by reasbf of his having reach¬ 
ed the age limit provided by statute. 


A long and Intimate acquaintance with Judge Speer, commencing 


with his graduation and extending down to the present time, permits me 
to testify to his sterling worth, with a warrant of assertion pos¬ 
sessed only by those who have had the good fortune to know him closely. 


Judge Speer’s life has been vigorous, manly and open. He has 


always stood for fair dealing, for» justice, and for truth. The courage 
to do his duty under all circumstances, regardless of the favor or 
frown that such a coxirse might bring^ has ever been with and of him, 
Neither personal danger, nor physical discomfort, nor the criticism of 
men, nor the threatened ostracism from the social life to which he was 
bom, has ever served to deter him for a moment or to deflect his 
course a hairbreadth from the line of action that his sens® of duty 


47 


Hon.T.R., # 2, 

depicted. More than that of most men, and to a deerree as great as any 
other man of my acqiiaintance, has his action in life been beyond the 
influence of place, pelf or cajolery. He has outlived the ^torm that 
broke over him in his younger years because he dared to do v/hat he 
conceived to be right, to be taken to the heorts of many who, in days 
gone by, had pursued him with all of the bitterness that belongs to 
keen and relentless partisan politics. 

Few men are so bountifully endowed with all of the qualifica¬ 
tions that contribute to the formation of judicial character, as is 
Judge Speer, 

With an alert intelligence, a richness of diction beyond his 
fellows-, and the training of years, aided, influenced and ripened by 
a life of rectitude and morals. Judge Speer is preeminently fitted 
for the place. 

It is not amiss for me to say in this connection that only 
twice in my life, until now. have I ever given endorsement to any 
person for judicial preferment. Holding to lofty ideals as to the 
character, both mental and moral, necessary to equip one for the judi¬ 
ciary, I have been cautious at all times, to a degree, in my personal 
action, where appointment to the Bench was concerned. It is, however, 
that very caution, and my own understanding of the many requirements 



48 


Hon.T.H., # 3, 

that thoaia teet in a nan to enable hto to capably fill the high posi¬ 
tion of Judge of the Circuit Court of Appeals, that moves me now to 
endorse Judge Speer .earnestly ani sincerely, as a nan in all of 
phases Of life, nlnd, morals and training, qualified and able to 
satisfactorily discharge the duties that belong to the Appellate Court 

Bespectfully, 


A. W. STALEY, C C.. 

VINEVILLE 

A. N. KENDRICK, 

SeCReTARy’TRBASCRBR * DRLEGATe 
40e POPLAR STREET 


MACON DIVISION. No. 123. 


R OF RAILWAY CONDUCTORS, 
OF AMERICA. 



wVe meet in our own building. No. 
400 Poplar Street, on First and 
Third Sundays, at 2 p. m. 

TRUSTEES: 

E F RISER L- E- GR«FF«N 

H. DICKINSON 


MACON. CA.. February Ist, 1903. 


To the Members of \is^on Division No 123 

Order of Railway Conductors of America. 


Brothers:- 

Whereas having seen in the daily press frequent mention 
of the nanie of Hon Emory Speer, a distinguished citizen of our City, 
in connection with the Circuit Court of Appeals as a successor to 
Judge Alex P. Me Cormick and, knowing Judge Speer as a Jurist, a 
patrioMc citizen, a man broad in his sympathies, his love of jus¬ 
tice, his consideration for the.weak and as a representative of the 
american people, therefore be it 

Resolv-ed by Macon Division No 123 Order of Railway Conductors of 
America duly assembled. That we heartily recoimriend Judge Emory 
Speer for the appointment to this Office of United States Circuit 
Judge on the_retirement of Judge Me Cormick. 

The distinguished and useful career as District Judge, and his high 
caracter, broad patriotism, intellectual strength and scolarly at¬ 
tainments mark him as a man emminently worthy to be promoted to hi¬ 
gher honors and a wider field for unefulness in the Federal judi¬ 
ciary, He has presided over the courts of this District for many 
years, with commendable dignity and courtesy, and has adminstered 
the law with firmness, without severity. 

As a citizen antJjudge, we believe Ron Emory Speer to be worthy and 
deserveing of appointment to a seat on the United States Circuit 
Court bench, and we request our Secretary and Chief Conductor to 
forward a copy of these resolutions to the President of the United 
States as our petition that he be appointed. 


Unanimously addopted; 











49 


STATE OF KENTUCKY. 

ADJUTANT GENERAL’S OFFICE. 

BRIG-GEN. DAVID'R. MURRAY. 

Adfutant General. 

COU. PERCY HALY. 

Assistant Adlutant General. 

CAPT. EO PORTER THOMPSON. 

Compiler of Confederate Records 

JSLtl. 29 th. 1903. 

Hon. Theodore Roosevelrt, 

President of the United States, 

Washington, D. C. 

Dear Sir: 

•Judge Emory Speer, of the Southern District of Georgia, whose 
judicial record is doubtless well known to you, is an applicant for 
prdmotion to be United States Circuit Court Judge—a vacancy having 
been created by the apnointment of the Hon. Wm. R. Day to the Supreme . 
Bench. . 

I hope it will not be regarded as presumptuous in me to asK a 
favorable consideration of his claims. His relations to a great body 
of Kentuckians are such that his appointment would be to them exceed¬ 
ingly gratifying. Though a Georgian he was a member of our famous 
Orphan Brigade and proved himself a gallant boy; since which time 
Kentuckians have felt for him the peculiar tie of comradeship, and 
have been proud of him because of his sterling .worth as a man, and 
his honorable record in Congress, at the bar, and on the.bench of 
his native State; and any favor the President can extend to'him, 
consistent v/ith public interests, will be gratefully remembered by 
by t 





50 


WABUOUNT. AC8UOUNT.JR 

Blount &. Blount. 

jniii diTuns^Uors id^aar, 
Pensacola,F la. 


Jan. 28, 1903 


To the President, 

Washington, D. C. 


Dear Sir: 


I understand that the name of Judge Emory Speer of 
Georgia has been presented to you for appointment to the Circuit 
Court of Appeals of the Fifth Judicial Circuit, vice Judge a. P. 
McCormick, vrho intends to retire. I am glad to be able to add my 
endorsement of Judge Speer to the endorsement which I knov/ that he 
has received from the lawyers throu^out the circuit. His record 
upon the bench has been such as to justify me in the belief that 
no better appointment could be made in the circuit tliin an appoint¬ 
ment of him, and that if he be appointed, the interests of all liti¬ 
gants which may be committed to him as a Judge of the Circuit Court 
of Appeals will be thoroughly, conscientiously and ably protected and 
conserved. 







Yours very truly 



51 


JUDGE’S ChauBBRS, 

UNITED STATES DISTRICT COURT. 

Northern Otstrict of Mlinois. 

CHICAGO. 


January 27, 1903 « 


President Theodore Roosevelt, 

Washington, D. C. 

Dear Mr. President: 

The friends of Judge Emory Speer of Georgia are urg¬ 
ing him for the position of Circuit Judge, soon to become vacant, I un¬ 
derstand, by the retirement of Judge McCormick of Texas. Georgia has 
no representative in the Court of Appeals, I believe, at present. 

Judge Speer is one of our Galena orators, a most eloquent and 
loyal man. He is a Republican v/ho is in accord with the better South¬ 
ern sentiment. I have been kept supplied from time to time with his 
speeches, the burden of which is an earnest appeal to his Grand Juries, 
as well as to the Southern people, for a recognition of the supremacy 
of the Federal Government. I think the doctrine of the States' Rights 
is not quite dead down there. 

I have known Judge Speer for a number of years. He is a 
good law^'er and Judge and gentleman. He would be an ornament to the 
Circuit Bench, as he now is to the District Bench, and would, I'm sure, 
be very acceptable to the people of the Fifth Circuit. 

With best of wishes for your health, and the highest of 
hopes for your future, 

I am, sincerely ^^urs. 





52 


JAMES H WILSON 



(Throligh the Attorney General,) 
Washington, D, C, 


Sir: 



I take great pleasure in saying I hare knovm the Hon¬ 
orable Emory Speer, U, S« District Judge, at I'acon, Georgia, 
for many years, and regard him as one of the ablest, tairest 
and most fearless Judges in the range of my entire acquain¬ 
tance, He is In every sense fit for the highest Judicial po- 
aition, and I trust will be promoted to the vacancy in the 
Circuit Court of Appeals for the Fifth Circuit, vice, Judge 
A, P, McCo^ick, retired, 

I have had for many years a great Interest in the re- 

\ 

gion over which Judge Speer presides as District Judge, It 
was my good fortune to be in command of the Cavalry Corps 
which occupied that State at the close of the War of Secession, 
and thereby became acquainted with its leading people. It 
was also my good fortune to occupy the same region with the 
First Army Corps prior to its transfer to Cuba, During this 
time I become well acquainted with the conditions prevailing 
in that portion of the United States, and it -gives me great 
satisfaction to say that Judge Speer is not only Judicially 
but socially at the very top of the beat society of Georgia, 

He is a gentleman of the most exemplary habits, studious in 
his profession, eloquent as a speaker, independent and thor- 


ZZZZZZi 


53 


#2 

oughly American in his Judgments and has the good fortune to 
enjoy the respect and confidence of his neighbors, without 
reference to condltion^or color* I conscientiously believe 
there is not a single objection to be raised against his 
character or eminent fitness for the Judicial office now va¬ 
cant. 

Trusting that you will find it convenient and desirable 
to appoint him, I am. 



• rrry scvtNTH CONGRESS. 
P. PRITCHARD .CHAIRMAN. 
P,PLATT,CONN. 

P .Mf COMAd. 

R.KITTPeOGC 
R.MALLORY. 

RHClTrCLO. 

R.rOdTCR, LA 

R.H M^NCILL.CLeRtC"* 


MiVIK 


^nxteh JS>taU» ..Scwote, 


COMMITTEE ON PATENTS. 



WASHINGTON.O C., 


peb. 2, 1903, 




'6^ 


TO the President 


It affords me great pleasure to recommend the appoint¬ 
ment of Hon. Emory gpeer to fill the vacancy occasioned by the 
retirement of Judge McCormick of the Fifth Circuit. Judge Speer 
is eminently fitted to fill the high position to which he aspires, 
and I sincerely trust that you can see you r way clear to appoint 





54 


WILLIAM C OOOQC. 
HEW YORK. 




January 22 , 1903, 


9» JOHN <TRC£r. 


To the President, 


Dear Sir 


of 



I learn with great pleasure that the name 
Speer, of Macon, Georgia, has been suggested 


for the vacancy in the Circuit Court of Appeals of the 
Fifth Circuit, made by the retirement »f Judge A, P, 

Me Cormick, 

I have had occasion to know something of the ability 
and high character of Judge Speer, and should feel much 
gratified if you should see your way clear to make the 
nomination, 

I am, with high regard. 


Very sincerely yours, 



The President 


Washington, D, C, 



55 



January 26th, 1903 


Tn His Excellency, 

Hon. Theodore Roosevelt, 


President of the United States 


Washington, D. C 


Dear Sir:- 


The Honorable Emory Speer, Judge of the United States 


District Court, iQcated at Macon, Georgia, is a candidate for the 
vacancy on the Circuit Court of Appeals. 


I have known Judge Speer since boyhood, and unhesitatingly 


and unqualifiedly recommend him for this hi^ position that he is 
striving for. He is a man of pre-eminent ability, and certainly 
will adorn the position with great credit, not only to his State, 
but to the people at large. If you can see your way clear to give 
him this position, I have no doubt but what your action will meet 
with the entire approval of the people of this State. 


I prestime you know a great deal about the qualifications 


Judge Speer for such a place, and will, therefore, not burden you 
wi ♦'Ji any lengthy petition asking for favorable consideration for him 
' rt ur hands. 


With hipest esteem, I beg to remain, 



' Your obedient servant. 




Mayor ^- A 




56 


> I 


L. A. SHAVER, 

Solicitor. 


Hwtjcrstatje ®otnmcrcjc OToiumissioU; 
‘i^Eashiugtou. 



February 4, 1903, 


TO THE PRESIDENT: 

In view of the reported forthcoxoing retirement of Judge 
A. ?. McCormick as one of the United States circuit judges for 
the fifth circuit, I take the liberty of calling your attention 
to Judge Emory Speer, United States District Judge for the 
Southern District of Georgia, as a worthy and capable successor 

I have conducted a number of cases in Judge Speer's court, 
and while his disposition of those cases has not always been 
in accordance with my ex parte views as an attorney, he has 
been sustained by the higher courts and I have been impressed ' 
with his impartiality, his dignity combined with affab'lllty on 
the bench, his capacity for patient and thorough investigation 
and the cleaimess and promptness of his rulings and decisions. ^ 


I sincerely and earnestly commend him for promotion to the , 


circuit Judgeship when the vacancy shall have occurred. I bO' 


lleve this will both subserve the public good and be most accep4>. 
able to the bar and the public in general. 


Very respectfully. 




57 




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58 


Charles W. Lavers. 
PfMlA G«A’i 


HewARO M.VLM Court. 
VicaRAl 


Charles L.LewandO. 


Horace G Van Court. 
S«cr«t«nr 


Wnt ^hop ^ feather MprrantilpJVjpnry, 


INCORPORATE D<' 


•OAftD 09 OlACCTOftSl 
c w ULVffRS e.L.LtWAMOO 

M w VANCOUITT M.e.VANCOUttT 

Y r DOkAN A.N.OkCA«OM 

• V TO»«UMON 


Caiittal ” $200,000. 


Executive Offices 

IB3 (Stttx 


SRANCH OFFICES. 

Makinea aMikchant 6i.o4. 
3?*A Chestnut Sts.Phhaoeipmia.^ 
320 Bhoadway.NewYonk.NY 
147.FirTM AVE,* Chicago. 



^00tart, 


Jan. 30, 1903. 


To His Excellency Theoaore Roosevelt 

President of the United States 
Executive Mansion 

Washington, D. C. 


Slr:- 


We take the liberty of writing to you In reference to the ap‘ 
polntment of a Judge to the Circuit Court of Appeals of the Fifth Clr^ 
cult, to fill the vacancy caused by the resignation of one of that 
Court, It has been our good fortune to have personal knowledge of 
the able, consistent, and Impartial service which Judge Emery Spear, 
of Macon, Ga,, has rendered during his service on the bench, and we 
most earnestly plead for his appointment to the vacancy spoken of, 
feeling, as we do, that the Bankruptcy Law will be administered, as 
far as he is concerned. In a most careful and efficient manner. 

Representing, as we do, the shoe and leather Interests of 
the country, v^ilch involves our representing clients in every district 
In the land, we feel that our appeal to you will no doubt receive due 
consideration. 

We have the honor to be 





59 


FRANK IRVINR 

CORNELL, UNIVERSITY COLLEOF. OF LAW. 
ITHACA. N. Y. 


January 29, 1903* 


To the President of the United States, 

Washington, D. C. 

Mr. President:- 

Permit me to add my name to those v/ho recom.end the 
appointment of Hon. Emory Speer of Georgia to the office of Circuit 
Judge for the Fifth Circuit. 

Judge Speer has served his country so long and so well in 
Congress .ind as District Judge that it is needless to offer testimony 
as to his great ability and his sound patriotism. His opinions add 
lustre to the reports of the Federal Courts, and his whole career 
has been narked by a manly, courageous and able advocacy of broad 
national ideas, most effective in obliterating the sectional preju¬ 
dices and bitterness which in his earlier years threatened the pro¬ 
gress of the naticr’. 

While I have not the honor of Judge Speer's personal acquain¬ 
tance I hav. such admiration for his qualities as a man and a judge 
that I venture the hope that his field of usefulness may be broad¬ 
ened by this appointment. 




60 





MELR03E PLANTATION, 
THOMASVILLE. GEORGIA 






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-<■^-.^> 2 . S^e,e^ ^ <ry^ 

(X^ 

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62 








63 


Outlook Company 

287 Fourth Avenue 
NewYork 



note which I venture to enclose* and in compliance 
with which I am writing this letter to you. 


Of Mr. Speer’s judicial qualifications I have no 
real knowledge, nor should I think myself sufficient 
legal expert to offer any opinion on that subject. But 
I have had occasion to know something of his general 
influence in Georgia. I have read and in the Outlook 
commented on, I think two of his public utterances. 

I have had some correspondence with him, although I 
have never personally met him, and he seems to me to 
represent in a very effective and tactful manner the 
broad, fratemal and progressive spirit which is, under 
the leadership of just such men as he, steadily increas¬ 
ing in power in the South, and which it has been a part 
of your policy to promote by every means in your power. 

I should be very much mistaken if Judge Speer did not 
carry this National and comprehensive spirit on to the 
bench, and if it did not pervade all his decisions which 
had to deal with politico-legal questions. 

Yours sincerely, 

Hon. Theodore Roosevelt, 

President of the United States, 

Washington, D. C. 





64 


JOHN H.MAMI.INe 
rAANK H SCOTT 

RCOMONO D.STCPMS.NS 

Copy, 

T^ieodore Roooevolt, Esq,, 

president of tha United State*. rebruary 27th, 1903. 

Taahlngto n, D.C. 

Dear Sir:- 

In the early oightie* I conceived a groat admiration for the cliaraoter 
of Emory Speer, United States Attorney for the Korthem District of Georgia, by 
reason of the energetic and inflexible manner in idiic}i ho enforced the laws of 
the United States with respect to elections within that D.istrict, regardless of 
color, and at the risk of social ostracism by his own i) 0 oplo, Sx parte Yarbrough 
110 United State* 651, established the supremacy of the national Election Laws, 
and was the result of his work, A few years thereafter, having business in 
Georgia for Illinois clients, I mado Judge Sfoer** personal acquaintance, and my 
earlier impressions were strongly confirmed. He was then a member of the U,S, 
District'Bench, 1 found him to be held in high esteem by tlie bar of Georgia, 

€uid greatly admired by hi* fellow citiaen* for hi* learning, ability and un¬ 
failing courtesy. Some years afterwards I chanced to spend a few days at 
Augusta, Georgia, where Judge Gpeer was holding court, and renewed my aequaintanoe 
with, him, Ifhile I was there, he gave a general c)iargo to the Federal Grand Jury, 
in whi(^ he took occasion to enjoin the necessity of every nan's yielding an un¬ 
reserved allegiance to tho United States and prompt obedienos to it* laws, in 
words, that for pure patriotism and sound constitutional learning equalled any¬ 
thing which I have heard or read. 

I learn that hin name is suggested as a possible nominee for the posi¬ 
tion of a member of the Circuit Court of Appeals for the Fifth Ciroult, and I 
take the liberty of sondlng to you this testimonial from a fellow lawyer as to 
his wrk and ability. I believe such work as Judge Speer has done In the South 
should meet with the amplest recognition, and that tho Federal Court should be 
filled by men who hold tho constitutional views that Judge Sijoor entertains, and 

have tho courage to express them as op>enly and constantly as has Judge Speer 

Very truly yours, 

during the past twenty years. joim h. HAMLINE, 


MAM LINE. SCOTT S LORD. 

law offices . 

Thc mplE . Chicago. 



65 


Gcoroia 

State Hoticultural Society. 


DUDLEY M. HUGHES. PRESIDENT, 
DANVILLE. GA. 


MAHTIN V. CALVIN. SECRE'»^A«V. 
AUGUSTA. GA. 


Q)(inut//e, 


Jan. 27 th, 1903 


Ur. President:- 

I have the honor to endorse Honorable Enory Speer for 
Judge of the Circuit Court of Apoeals . His Judicial record in Georgia 
is without reproach; he has brought this District Court from disrepute 
to renovm and today it stands on the highest pinnacle. 

In his court the Dodge Land Company cases, perhaps the most 
intricate, serious and far reaching as to this section, have been ad¬ 
justed. The conduct of these cases directed by his common sense, legal 
ability and Judicious v/isdom settled a question of paramount issue to 
land ov/ners in Georgia. This .with other of his able legal decisions 
brings to him the support of the yeomanry. 

'TOiereas Judge Speex and myself disagree politically it is a 
pleasant duty that I perform to my state to endorse this learned Jurist 

i 

for this high position-to which he would add luster. Trusting thqt you 
may see it wisdom to give this appointment, I am. 

Very respectfully. 

President. 



66 



To the President, 

.Vl/hite H6uae, V/ashington, D. C. 

Mr. President:- 

;^/e understand that the Hon. Judge Emory Speer's name has been 
presented to you for promotion to the Bench of the United States 
Court of Appeals for the Pifth Circuit, to fill the vacancy caused 
by the Retirement of Judge McCormack. The jurisdiction of the said 
Court controls a large proportion of the business of all the Circuit 
and District Courts in that important territory embraced in the States 
of Georgia, Florida, Alabama, Mississippi, Louisiana and Texas, and 
we have been requested by the members of the Brotherhood of Locomotive 
Engineers employed in those States to recommend to you the appointment 
of Judge Speer as a man well fitted and qualified to discharge the 
duties of that position. The members in those States speak in the 
highest terms of Judge Speer as a fair and Just man in all the de¬ 
cisions he hes rendered betv/een capital and labor. We will esteem 
it not only as a personal favor, but a recognition of the B. of L. E. 
and the B, of L- P. in those States if you can consistently find your 
way clear to appoint him to that position. 

Wishing you and your administration all possioie success. 



we remain, 


Sincerely yours. 























67 



CalD firpirlnrnt 

(City ant) (County of i&an J^ranciaro 


FRA.NSI.IN K. LAMB 


San Francisco, Feb, 3, 1903. 


Sir: 

I <in inj-omed that Judge Smory Speer of Georgia desires pronotion 
to the Circuit bench, and I beg to add the slight weight of rcy en¬ 
dorsement. Judge Speer has a head full of good sense and a heart 
full of courage. He appeals to me as a fine representative of the 
new South. 

I am not of your political faith though in ny recent campaign 
for the governorship of the State the grave charge was made by my Re¬ 
publican opponents that I was a Roosevelt Democrat, - with the result 
tliat I ran some 46,000 votes ahead of my ticket. 


Very Respectfully, 









68 


THE JAMISON HABEAS CORPUS CASE. 

Henry Jamison, a reputable colored man, employed as a 
house-cleaner and furniture-repairer in the Vineville resi¬ 
dential section of the City of Macon, was arrested by a 
police officer of the city, charged with ‘‘drunk and disorder¬ 
ly.’^ While confined in the police barracks and still intoxi¬ 
cated he was boisterous, and used profane and abusive lang- 
guage to the police officers, and an additional charge of “dis¬ 
orderly conduct in the barracks” was lodged against him. 

The next morning he was summarily tried by the Police 
Recorder on the two charges, and was sentenced to pay fines 
aggregating $60, and in default thereof to be committed 
to the Bibb County chaingang for two hundred and ten (210) 
days, or seven months. 

The Bibb County chaingang was a branch of the State 
Penitentiary, to which felons and parties convicted of mis¬ 
demeanors by the State courts were committed. Under 
the authority of the charter of the City of Macon, a contract 
with the County authorities had been made by which the 
County paid to the City $8,000 per annum, and persons con¬ 
victed of offenses against the municipal ordinances were 
sentenced to the County chaingang, the County receiving as 
a consideration for the amount paid the City the labor of 
persons so sentenced. The conditions under which these 
persons were worked upon the chaingang and the character 
of punishment inflicted is described in the opinion of Judge 
Speer, which is incorporated at length in the stenographic 
record on page 230, and is reported in 130 Federal, 351, as 
follows: 


“The most cursory view of the evidence in the 
record will convince the impartial that practically 
every ignominious mark of infamous punishment is 
stamped upon the miserable throng in Bibb County 
chaingang. This is clear from the testimony of the 


69 


superintendent, E. A. Wimbish, and from the uncon¬ 
tradicted evidence of witnesses who have there expi¬ 
ated their disregard of sundry provisions of the City 
Code. The sufferers wear the typical striped cloth¬ 
ing of the penitentiary convict. Iron manacles are 
riveted upon their legs. These can be removed only 
by the use of the cold chisel. The irons on each leg 
are connected by chains. The coarse stripes, thick 
with the dust and grime of long torrid days of a 
semi-tropical summer, or encrusted with the icy mud 
of winter, are their sleeping clothes when they throw 
themselves on their pallets or straw in the common 
stockades at night. They wake, toil, rest, eat, and 
sleep, to the never-ceasing clanking of the manacles 
and chains of this involuntary slavery. Their prog¬ 
ress to and from their work is public, and from 
dawn to dark, with brief intermission, they toil on 
the public roads and before the public eye. About 
them as they sleep, journey and labor, watch the con¬ 
vict guards armed with rifle and shot-gun. This is 
to at once make escape impossible, and to make sure 
the swift thudding of the picks and the rapid flight 
of the shovels shall never cease. If the guards would 
hesitate to promptly kill one sentenced for petty 
violations of city law should he attempt to escape, the 
evidence does not disclose the fact. 

And the fact more baleful and more ignominious 
than all, with each gang stands the whipping boss, 
with the badge of his authority. This the evidence dis¬ 
closes to be a heavy leather strap about two and a 
half or three feet long, with solid hand grasp, and 
with broad, heavy and flexible lash. From the evi¬ 
dence we may judge the agony inflicted by this im¬ 
plement of torture is not surpassed by the Russian 
knout, the synonym the world around for merciless 
corporal punishment. If we may also accept the un¬ 
contradicted evidence of the witnesses, it is true that 
on the Bibb County chaingang for no days is the 
strap wholly idle and not infrequently it is fiercely 
active. One witness, who served many months, tes¬ 
tified that if the gang does not work like '‘fighting 
fire” (to use his simile) the whipping boss runs down 
the line, striking with apparent indiscrimination the 
convicts as they bend to their tasks. Often the whip¬ 
ping is more prolonged and deliberate. At times, ac¬ 
cording to another witness, also uncontradicted, the 


70 


convicts when at the stockade are called into the 
“dog lot.’’ All present, the whipping boss selects 
the victim in his judgment worthy of punishment. 

They are called to the stable door, made to lie face 
downward across the sill, a strong convict holds 
down the head and shoulders and the boss lays on 
the lash on the naked body until he thinks the suf- 
erer has been whipped enough. It is but just to Mr. 
Wimbish to record his statement that he knew noth¬ 
ing of this ceremony. It may be judged from the 
evidence that it is a whipping more formal and dras¬ 
tic than any other inflicted. Since this is done at 
the stockade, we may presume that the spectators 
and guards are the only witnesses, but on the public 
roads, in the presence of wayfarers and bystanders, 
often the convict, to use an expression of a witness, 
“is taken down and whipped.” The evidence gives 
us the account of two white persons who were thus 
whipped, one, a boy with but one arm. For this 
reason, it was not necessary to hold him. He stood 
and cried as the boss applied the lash. The other 
white boy was compelled to place his head between 
the legs of a burly negro convict and was thus im¬ 
movably held. The punishment will mark the lad 
with infamy in the minds of his fellows as long as 
he may live. The oifense of one of these lads was 
'loitering in the depot.’” 

Jamison, through his attorneys, Akerman & Akerman, 
applied for a writ of habeas corpus, alleging that his trial, 
sentence and commitment were illegal and void because 
he was deprived of his liberty and subjected to infamous 
punishment without due process of law, in violation of the 
Constitution of the United States. The writ was issued, 
directed to E. A. Wimbish, Superintendent of the County 
chaingang. A hearing was had at Savannah, where the 
court was then in session, but by request of the Hon. Minter 
Wimberly, City Attorney, for leave to file a supplemental 
brief, a re-hearing was had at Macon. After a full hearing 
many witnesses being introduced, an order was entered, dis¬ 
charging Jamison from custody. An elaborate opinion was 
rendered by Judge Speer, to which reference has already 
been made. To the judgment discharging the prisoner, the 


71 


City of Macon entered an appeal to the Supreme Court of 
the United States. Pending this appeal several other peti¬ 
tions for habeas corpus were filed by prisoners sentenced 
by the City Recorder to the chaingang, and by consent these 
cases were allowed to await the final determination of the 
Jamison case. 

On October 16, 1905, the Supreme Court of the United 
States reversed Judge Speer. The Court filed no opinion, 
but based its decision on the case of Minnesota v. Brun- 
dage, 180 U. S., 499, and other decisions to the same effect. 
(See Wimbish v. Jamison, 199 U. S., 599.) In the Brundage 
case, the Supreme Court had distinctly recognized the right 
of the United States to discharge on writ of habeas corpus 
prisoners held by State authorities in violation of the Con¬ 
stitution and laws of the United States, but as a matter of 
comity decided that the prisoner should first exhaust his rem¬ 
edies in the State courts before appealing to the United 
States Court. The Supreme Court in the Jamison case, 
therefore, did not reverse Judge Speer upon the merits, nor 
hold the United States was without jurisdiction. The effect 
of the decision was simply that the prisoner should first 
exhaust his remedies in the State Courts before appealing 
to the United States Court. 

The mandate of the Supreme Court, which appears in the 
stenographic record on page 389, is dated November 17, 
1905. Mr. Wimberly testified that he received the mandate 
on the 19th. At the time the mandate was received the 
District Court, to which the habeas corpus had been ad¬ 
dressed, had been adjourned for the term. The court house 
was being demolished, preparatory to the erection of a new 
building, and no temporary quarters had been provided for 
the holding of the Court. Mr. Wimberly testified that he noti¬ 
fied Mr. Alexander Akerman, as attorney for Jamison, that 
he would present the mandate to Judge Speer and ask for an 
order making it the judgment of the court. (See Stenographic 
Record, page 448.) Mr. Akerman testified that he 
carried the mandate out to Judge Speer’s house and in¬ 
formed him of Mr. Wimberly’s desire that it should be 


72 


made the judgment of the court, and that the same time re¬ 
quested Judge Speer, as a courtesy to him, not to make the 
mandate the judgment of the court in his absence, stating 
that he was on the eve of leaving town, as it was his inten¬ 
tion, representing Jamison, to sue out a writ of habeas cor¬ 
pus in the State court. (Stenographic Record, page 1056.) 

On Novemiber 24, 1905, the Judge, by appointment, met 
certain attorneys at the parlor of the Hotel Lanier for the 
purpose of passing on some question in the R. H. Plant 
bankruptcy matter. Mr. Wimberly appeared before the Judge 
at this time with the mandate of the Supreme Court and 
with an order prepared by himself making the mandate the 
judgment of the District Court, and requested Judge Speer to 
sign this order. The Judge stated that the court was not in 
session, and that he would not entertain any other matter 
save the bankruptcy case then on trial. In response to Mr. 
Wimberly’s question as to when the court would be in ses¬ 
sion and his suggestion that he understood the court always 
to be open in habeas corpus cases. Judge Speer said the 
papers could be left with the Clerk. (See printed record, 
pages 425, 426, 444 and 445.) The mandate was imme¬ 
diately turned over to the Clerk by Mr. Wimberly, and was 
marked filed November 24, 1905. Within five minutes after 
the mandate had been filed, Mr. Wimberly directed the Chief 
of Police to seize Jamison and turn him over to the Super¬ 
intendent of the chaingang. (See testimony of Minter 
Wimberly, Stenographic Record, page 504.) 

The Chief of Police carried out this direction by going to 
Jamison’s home between eleven and twelve o’clock on the 
night of November 24, placing him] under arrest, confining 
him in the City barracks, and on the morning of November 
25, turned him over to the Superintendent of the chaingang. 
While the mandate was not made the judgment of the Court 
by formal order, it was filed in the Clerk’s office by direction 
of the Judge, and the City authorities proceeded as though 
it had been formally made the judgment of the court. No 
further effort appears to have been made at that time by 
Mr. Wimberly or any one else to have the mandate made the 
judgment of the court. 


73 


On November 25, the morning after his re-arrest, Jamison 
applied to Hon. William H. Felton, Judge of the Superior 
Court of Bibb County, for a writ of habeas corpus. On 
November 28, Judge Felton remanded him to the custody of 
the Superintendent of the changang. On the same day 
Jamison sued out a writ of error to the Supreme Court of 
Georgia. Judge Felton, however, declined to grant a super¬ 
sedeas or to allow Jamison to be enlarged on bail, and he 
was re-incarcerated on the chaingang. Under the rule of 
practice in the Supreme Court of Georgia, it was altogether 
probable that Jamison's case would not be reached for hear¬ 
ing by that Court until after Jamison had completed the 
service required by his sentence, in which event the case 
would have been dismissed by the Supremie Court as a moot 
question. Having, therefore, exhausted his remedies in the 
State Courts, and it being apparent that a considerable por¬ 
tion, if not all of his sentence, would be actually worked out 
before his case could be heard in the Supreme Court, Jami¬ 
son, on November 30, applied the second time to the United 
States Court for a writ of habeas corpus, alleging the pro¬ 
ceedings in the State court and that he had exhausted 
his remedy therein, and that his imprisonment was without 
process of law in violation of the Constitution of the United 
States. 

On December 1, an order was granted directing the writ 
to issue, and Jamison, a few day thereafter, was enlarged 
on bail. The second habeas corpus appears in the printed 
record, on page 395. The hearing was assigned on Decem¬ 
ber 11, at Valdosta, at which point the court was then in 
session, and the hearing was by order of the court post¬ 
poned, upon the ground that the case involving the constitu¬ 
tionality of sentences by the Recorder of the City of Macon 
to the County chaingang was assigned for hearing in the 
Supreme Court of Georgia on December 18, and the opinion 
of the Supreme Court of Georgia was desired before the 
case should be disposed of in the United States Court. 

On the morning after the re-arrest of Jamison by direc¬ 
tion of the City Attorney, upon the application of Jamison, 


74 


verifie-d by the oath of his counsel, Alexander Akerman, a 
rule nisi was issued against Minter Wimberly, City At¬ 
torney, Conner, Chief of Police, and Wimbish, Superintendent 
of the chaingang, calling on them to show cause why they 
should not be attached for contempt for re-arresting Jami¬ 
son after he had been discharged by order of the United 
States Court, and while this order remained unrevoked the 
rule was made returnable on January 2, 1906, at which time 
a hearing was had. The court reserved its decision, and 
no further action was taken in the matter. The proceedings 
on this rule appear in the printed record, on page 423, 
et seq. 

In the meantime, on December 18, 1905, the case of Pear¬ 
son V. Wimbish was argued in the Supreme Court of Geor¬ 
gia. This was a writ of habeas corpus issued by the Judge 
of the Superior Court of Bibb County upon the application 
of Pearson, who had been sentenced by the Recorder of 
Macon to a term on the Bibb Coupty chaingang, the sen¬ 
tence being attacked upon the same grounds as those ap¬ 
pearing in the original Jamison petition. The opoinion of 
the Supreme Court of Georgia was handed down on Janu¬ 
ary 13, 1906. It fully sustained Judge Speer in his decision 
that sentences by the Recorder to the Bibb County chain¬ 
gang were in violation of that provision of the Constitution 
which declares that no person shall be deprived of life, lib¬ 
erty or property except by due process of law. The opinion 
of the court through Mr. Justice Evans (Pearson v. Wim¬ 
bish, 124 Georgia, 701), is illuminating. We beg to quote: 

“For a person lawfully to be made to suffer pun¬ 
ishment as a lawbreaker, there must be not only 
process of law but due process. Process which may 
be sufficient to authorize punishment for petty of¬ 
fenses by fine, imprisonment for a reasonable time in 
the city barracks (or even to work upon the public 
works of a city, if there be in the charter any author¬ 
ity to impose such a sentence as confinement at labor 
under municipal control), will not suffice for sending 
a person to a county chaingang for several months 
When the punishment is imposed is the same, or 


75 


of the same nature, as that inflicted upon offenders 
against the laws of the State, and to be suffered in 
company with them^, due process requires a trial to 
some extent analogous to the trial of persons accused 
of misdemeanors against the State. To call the of¬ 
fense “petty’' for the purpose of trial, but as serious 
as the violation of a State law for the purpose of 
punishment, is inconsistent. If the punishment is of 
the same character as that imposed for a State of¬ 
fense, the infraction of the municipal ordinance can 
not be called a “petty” offense in comparison with one 
against the State. A sentence of a City Recorder, 
without a right to a trial by a jury and with no more 
formal procedure than an entry on a docket, which 
subjects the prisoner to work in a county chaingang 
for three months, along with persons duly convicted 
of the violation of State laws, is not due process. It 
is declared in the Penal Code, Sec. 1036, that all 
felonies, save those therein enumerated, 'shall 
be punished by imprisonment and labor in the peni¬ 
tentiary for the terms set forth in the several sec¬ 
tions in this code prescribing the punishment of such 
offenses; but on the recommendation of the jury try¬ 
ing the case, when such recommendation is approved 
by the judge presiding on the trial, said crimes shall 
be punished as misdemeanors. If the judge trying 
the case sees proper, he may, in his punishment, re¬ 
duce such felonies to misdemeanors.’ Even if those 
regularly convicted of felonies, but who are left in 
the custody of the county authorities, be kept sep¬ 
arately, nevertheless those falling within the provis¬ 
ions of the Penal Code above referred to are detained 
in the county chaingang. If a person who is con¬ 
victed of some petty municipal offense can, after 
trial before the Recorder, be sent to the county 
chaingang, he would not only be sentenced to a pun¬ 
ishment similar in its nature and character to that 
imposed for misdemeanors against the State, but 
be placed in direct association with, and be confined 
along with, felons whose punishments have been re¬ 
duced under recommendation. It can not be that 
such a sentence can be imposed in Georgia by one 
man alone, trying a criminal case. If the sentence 
can be for three months in the county chaingang, it 
may be for six or twelve months, if the Legislature 
should permit it. In fact, where would be the limit of 


76 


Legislative power to prescribe the extent of punish¬ 
ment to be meted out on the sentence of a Recorder? 
It is not a question of the person who may be subjected 
to such a punishment; it is a question of whether 
our organic law has entrusted such arbitrary power 
of punishment to be imposed, even upon the humblest 
citizen, by a municipal recorder sitting alone. The 
entrusting of such power of punishrnent for so- 
called petty offenses to a single man is not conso¬ 
nant with the spirit of our institutions or with 
our Constitution, which declares that no person shall 
be deprived of life, liberty, or property without due 
process of law. Process which tries a man without 
formality for a ‘petty’ offense, and punishes him in 
the same manner as, and along with, criminals violat¬ 
ing the laws of the State, with no right to a jury 
trial, no record save the entries upon a recorder’s 
docket, and upon his judgment alone, is not due pro¬ 
cess. We do not hold that the recorder’s court of the 
City of Macon is illegal, or that the Recorder can 
not proceed to try offenders against the municipal 
ordinances and pass such sentences as the law 
authorizes; but what we hold is that a sentence which 
requires the offender to be confined at labor in the 
county chaingang along with violators of the State 
laws does not furnish constitutional authority for 
such confinement, and that the provision of the char¬ 
ter of the City of Macon which authorizes the con¬ 
finement of offenders against municipal ordinances 
in the county chaingang for not more than six 
months is unconstitutional.” 

By consent the Jamison case was disposed of by the Su¬ 
preme Court at the same time that Pearson’s case was de¬ 
cided. This effectually terminated all proceedings in the 
Jamison case in the United States Court, as well as all mat¬ 
ters growing out of it. According to Mr. Wimberly, no¬ 
body took any further interest in the Jamison case after that 
time, or in the other cases pending in the United States 
Court. The City of Macon procured an amendment to its 
charter, by which the contract with the Commissioners of 
Bibb County for working municipal offenders on the chain¬ 
gang was set aside, and a foul blot on the fair name of the 
City was thus removed. 


77 


Except on the one occasion at the parlor of the Hotel 
Lanier already alluded to, no effort was made to take an 
order making the mandate of the Supreme Court the judg¬ 
ment of the District Court until June following. On the next 
day, Jamison was taken in custody by the Sheriff of Bibb 
County on his application for habeas corpus to the State 
Court. He remained in such custody until the 28th. On the 
30th he applied for his second writ of habeas corpus in the 
U. S. Court. After being enlarged by virtue of the second 
writ no possible good could have been accomplished by making 
the mandate the judgment of the court. Mr. Wimberly and 
the other city authorities evidently recognized this, and 
made no further effort to secure an order. Judge Speer 
was holding court in Valdosta a large part of the month of 
December. Early in January the Judge went to Savannah, 
and was engaged there in the trial of the case of United 
States V. Green and Gaynor until the late spring. In the 
meantime the Pearson case had been decided, putting an 
end to the confining of municipal prisoners on the chain- 
gang. On the return of the Judge to Macon, on motion of 
Mr. Akerman, the mandate was made the judgment of the 
court on June 8, 1906, and some time thereafter upon a 
similar motion by Mr. Akerman the rule against Wimberly 
and others for contempt was dismissed. 

It has been charged that in this case. Judge Speer defied the 
mandate of the Supreme Court and willfully refused to car¬ 
ry out its judgment. A recital of the facts as they occurred, 
supported in each instance by the record itself, shows how 
little foundation there is for this charge. The most that 
can be said is that Judge Speer at a time when the Court 
was not in session declined to pass an order in the case, after 
having been requested by Mr. Akerman not to act on the 
mandate until he had an opportunity to present a petition to 
the State Court. That no sort of harm came from the 
court's declining to pass the order at the time presented, is 
perfectly apparent. During only two days at most was 
Jamison subject to be confined by the sentence of the Re¬ 
corder, he having been in charge of the Sheriff by order of 
the State Court from November 25th to 28th, and having 


78 


filed his second petition for habeas corpus on November 30. 

In the light of all the circumstances, can the court^s refusal 
to grant the order at the request of Mr. Wimberly be justly 
characterized improper or arbitrary? Surely the circum¬ 
stances of the case, and particularly the harsh, arbitrary 
and unreasonable treatment which this prisoner had re¬ 
ceived at the hands of the city authorities and was about 
to be again subjected to are not to be lost sight of when 
the conduct of the Judge in the matter is made review. That 
the Judge’s conduct in the case was severely criticised by 
the municipal authorities is quite natural when the circum¬ 
stances surrounding the case, as disclosed by the testimony, 
are taken into consideration: Mr. Custis Nottingham, the 
then Recorder, testifies that he resented the interference of 
'‘an alien court” in municipal affairs. Mr. Wimberly testi¬ 
fies that he feared the liberation of Jamison and other pris¬ 
oners through the writ of habeas corpus would result in 
depopulating the chaingang and breaking up the valuable 
contract between the City and County authorities. This re¬ 
sult was actually accomplished by decision of the Supreme 
Court in the Pearson case, but the Supreme Court was not 
“an alien court,” and hence its interference was not so 
seriously objected to. 

An effort has been made to show that Judge Speer acted 
from improper motives in this case, the insinuation being 
that he was protecting a private servant of his own, but 
the record shows that Jamison was not in Judge Speer’s 
employ. He sometimes did work about the house, as he did 
for other families in the neighborhood. Mr. Akerman tes¬ 
tifies that Mrs. Speer was interested in Jamison’s behalf, 
and offered to pay him a fee to secure his liberation from 
the chaingang. He refused to accept the fee, however. His 
expenses, if not his fee, were paid by the colored people of 
Macon, the amount being raised by public subscription. 
Mr. Akerman also testifies that Judge Speer suggested his 
bringing the petition for habeas corpus in the State Court 
rather than in the United States Court. But, after all, has 
a judge no right to protect upon proper application in a 


79 


regular and legal way the defenseless and oppressed merely 
because he happens sometimes to be employed about his 
home, and if in so doing, and as the direct result of the opin¬ 
ion which he renders in the case, so iniquitous an institution 
as the Bibb County chaingang as the place for punishment 
of petty violation of municipal ordinances is broken up, is 
his conduct to be regarded as altogether reprehensible? 


THE HUFF CASE. 

Judge Speer’s action in this case has been criticised 
before the Committee by W. A. Huff, the principal de¬ 
fendant, and by T. S. Felder, one of the attorneys, who 
became connected with the case some time after it was 
instituted. The original bill was filed on August 5, 1899. 
The complainants were William L. Bidwell, of Connecti¬ 
cut, and Franklin E. Woodford, of New York, executor 
of Emerson S. Phelps, against W. A. Huff, individ¬ 
ually and as trustee, against the Mayor and Council 
of the City of Macon, Edison Huff and A. P. Herrington. 
The bill alleged that W. A. Huff, for himself and as trustee 
for his minor children, Mattie J. C. Huff (now Jennings), 
and Edison Huff, on the first day of August, 1893, executed 
to Emerson A. Phelps, a deed to secure a debt, by which 
deed he conveyed certain lots in the City of Macon. Wood¬ 
ford, executor of Phelps, brought suit in the State court, 
and on December 11, 1897, obtained a judgment for twenty- 
four hundred ($2400.00) dollars, principal, which judg¬ 
ment was general lien on all the property owned at its date 
by W. A. Huff, individually and as trustee, and a special 
lien on certain lots referred to in the litigation as the ‘‘Ar¬ 
mory property.” An execution was issued on December 11, 
1897, and turned over to the deputy sheriff of Bibb County, 
who entered thereon a return of nuVjd bona. It was alleged 
that the failure of the levying officer to enforce the execu¬ 
tion was ascribable to certain illegal tax sales of the prop- 



80 


erty, and other illegal acts set out in the bill. It was fur¬ 
ther alleged that on June 1, 1893, W. A. Huff executed to 
William L. Bidwell, of Connecticut, a mortgage on the lot 
known in the litigation as the ^‘Kimball House’^ property, 
to secure a debt of $1,714.12. This was foreclosed in the 
State court and a general and special judgment obtained. 

On this an execution was issued on November 16, 1897, 
to be levied on all the property of W. A. Huff, and especially 
on his undivided five-sevenths interest in the city lot, upon 
which the mortgage had been given. This execution was 
placed in the hands of the Deputy Sheriff of Bibb County, 
who likewise entered a return of nulla hona thereon. It was 
further charged that for several years W. A. Huff, as in¬ 
dividual and as trustee, had failed to pay taxes on this 
property and on his other property, and had permitted the 
property to go to sale under grossly excessive levies made 
thereon. The bill further alleged that Huff had cast the 
entire burden of all his taxes on the particular property 
mortgaged or conveyed to these two complainants, that 
after accumulating some sixteen hundred ($1600.00) 
dollars of tax executions against the Kimball House 
property, the City of Macon had imposed a paving tax 
on that property for two thousand and sixty dollars and 
sixty-one cents ($2,060.61), and a further special assess¬ 
ment for sewer connection and an additional sum for curb¬ 
ing, the burdens from the city taxation and assessment ag¬ 
gregating about four thousand ($4,000) dollars in addition 
to the State and County taxes, and it was alleged that this 
would consume the value of the property and destroy the 
lien held by Complainant Bidwell and amounted to a confis¬ 
cation of the property pledged to him, for the reason that 
the special assessment was in substantial excess of any spe¬ 
cial benefits accruing to the property. This, it was alleged, 
was in effect a “taking, under guise of taxation, of private 
property for public use without compensation.'' It was also 
alleged that the assessment was made by the city under a 
rule which excluded any inquiry as to specific benefits to 
the property, and that the Statute under which the assess- 


81 


ment was made, furnished to property holders no process 
of law under which the question of the extent of the benefit, 
if any, to said property could be judicially investigated. The 
bill alleged that the Mayor and Council of the City of Macon, 
before the paving assessment was made, had for many 
years assessed the property for fifteen thousand ($15,000) 
dollars, and since that time assessed it at ten thousand 
($10,000) dollars, and that this was true, although the city 
tax assessors had generally increased the valuations placed 
by them on property throughout the city. It was further 
alleged that W. A. Huff had practically abandoned this 
property to its burdens and had made no effort to pay off 
the load of debt, taxes and special assessments charged 
against it, had taken no step to defend the property against 
illegal assessments, had failed and refused to pay all the 
taxes annually falling due thereon, had permitted tax ex¬ 
ecutions' issued against him on this and his other property, 
both inside and outside of the city, to be levied on this par¬ 
ticular lot, and had taken no steps to prevent sales under 
such executions, and that the Mayor and Council of Macon 
now claimed a lien on said property for paving assessment, 
and '‘unless restrained will cause the property to be sold, to 
the irreparable injury of complainants and the destruction 
of the mortgage and lien thereon held by Bidwell, and that 
the paving assessments were in violation of their rights 
under the Constitution of the United States. It was more¬ 
over alleged that on May 24, 1894, the Mayor and Council 
caused the city tax executions against W. A. Huff, amount¬ 
ing to $225, to be levied on this lot, which was sold and pur¬ 
chased by the city for $230.75, that this levy was grossly 
excessive and illegal and the complainants prayed that the 
Mayor and Council be compelled to surrender their tax deed 
and that same be cancelled. The bill points out that although 
the City of Macon sold this property, they had continued to 
assess it for taxation and had continued to issue executions 
against it, thus recognizing their title as invalid. 

The bill further alleged that W. A. Huff was the owner 
of a large amount of valuable real estate outside of the City 


82 


of Macon, and that for several years all the taxes assessed 
by the County of Bibb against him individually and as trus¬ 
tee, had been levied on the Kimball House property, notwith¬ 
standing the fact that the value of the property outside of the 
city considerably exceeded the value of the property of the 
defendant in the city, and that this was a scheme of Huff 
to cause all his taxes to be charged against this property so 
as to relieve his other property therefrom. It is charged 
that these levies have likewise been grossly excessive, and 
that under such levies the property has been sold and pur¬ 
chased by the County of Bibb, and by the procurement of 
Huff the County of Bibb had conveyed said lands to other 
parties for the purpose of placing the same beyond the reach 
of complainant’s lien. The bill charges that the land men¬ 
tioned and described in the deed to secure debt made by 
Huff, individually and as trustee, to Emerson A. Phelps in 
his lifetime, on what is known as the Armory property, on 
which Woodford as executor holds a special lien, has from 
time to time been sold at tax sales under tax executions, 
some of them for city taxes and some for state and county 
taxes, during several years past, that said tax sales were 
void because the levies were grossly excessive, that the 
sales were illegal and passed no title, and that the Mayor 
and Cocncil of Macon became the purchaser of various tax 
titles, and now claim to own the said land. The bill prays 
that said deeds shall be likewise produced in court and can¬ 
celled. Similar averments were made with regard to the 
different tax sales for state and county taxes. 

The bill pointed out and described a large body of land 
contiguous to the City of Macon which belonged to Huff, in¬ 
dividually and as trustee, which had been conveyed to the 
Scottish-American Mortgage Company to secure a debt of 
fiften thousand ($15,000) dollars, besides interest, and 
that so long as the debt remains outstanding, ‘The legal 
title to the property is in the grantee and the same cannot 
be levied on under executions by law, but complainants 
allege that they are entitled to reach the equity of redemp¬ 
tion in said lands and can only do so by the interposition 


83 


of a court of equity.” Further it was stated in the bill that 
W. A. Huff, individually was seized and possessed of other 
property, and that by reason of deeds to secure debts on 
various of said properties as well as tax deeds and other in¬ 
cumbrances, complainants cannot reach and subject the 
same to their debts, except through the aid of the court. 
The bill charged that Huff was insolvent. The complainants 
prayed that an accounting be taken and the taxes appor¬ 
tioned against the different properties upon which the 
same were chargeable, that the assets of W. A. Huff might 
be marshalled and distributed among the different creditors 
according to their rights and equities, liens and priorities, 
and that since their remedies at law have proven unavailing 
that they are entitled to the aid of a court of equity, and 
that their bill may have the effect of a creditor’s bill not 
only for themselves, but for all other creditors who might 
intervene and be made parties thereto. The bill concluded 
with prayers appropriate to the relief sought. The com¬ 
plainants were represented by Hall & Wimberly, Attorneys. 
Demurrers were filed by the City of Macon, through its at¬ 
torney, Minter Wimberly, and W. A. Huff, individually and 
as trustee, through his attorneys, Alexander Proudfit and 
Anderson & Grace. 

The demurrers to the bill were overruled by Judge Speer 
on July 7th, 1900, and his opinion thereon is reported in the 
103rd Federal Reporter, page 362. 

Answers were filed on September 3, 1900, by the defend¬ 
ants. In the following month the bill was amended on the 
motion of complainants and in the same month the City of 
Macon moved to dismiss the case because replication had 
not been filed. Thereafter a petition was filed by complain¬ 
ants to make the Scottish-American Mortgage Company a 
party defendant and an order was obtained on petition, to 
perfect service on Mrs. Jennings, one of the party defend¬ 
ants. The Scottish-American Mortgage Company filed an 
answer to the amended bill on May 31st, 1902. The prelim¬ 
inary matters having been disposed of. Judge Speer ap¬ 
pointed Clem P. Steed permanent receiver, he having been 


84 


appointed temporary receiver on the filing of the bill. At 
the same time, May 31, 1902, an order was taken directing 
Mr. J. N. Talley to take and report the evidence in the 
cause under the equity rules. Later, however, * this order 
was revoked because of the engagements of Mr. Talley as 
court reporter, and Mr. Charles Cork was named as exam¬ 
iner, “in order to expedite the hearing of said cause,” and 
the time for taking evidence for complainants and defend¬ 
ants was limited by Judge Speer. However, thereafter 
always on the application of the parties and for cause 
shown, fifteen extensions of time were granted, there being 
no objection to any of the extensions, and several of them 
being at the instance of Mr. Huff, and one being granted 
because of the absence of T. S. Felder in the Legislature. 

The evidence taken by the Examiner was filed on January 
6th, 1905, and a hearing was had during the month, and 
eighteen days later, on January 24th, 1905, the court de¬ 
livered its opinion on the final hearing and requested coun¬ 
sel to frame decrees in accordance with the opinion of the 
court. 

Counsel being unable to agree, thirty-eight days later, on 
March 3, 1905, an order of reference was made to J. N. 
Talley, as Standing Master, to report such matters of detail 
as might be necessary and appropriate to the decree in ac¬ 
cordance with the opinion of the court. The evidence filed 
by the Examiner consisted of one thousand and fourteen 
pages, and related to many topics which counsel thought 
should be embraced in the final decree. 

On the following day, to-wit, on March 4th, Mr. Huff 
filed a petition for leave to file a cross bill. Thirteen days 
later, to-wit, on the 17th of the same month, arguments were 
heard and Judge Speer refused to allow the filing of the 
cross bill, and filed an opinion which is in the record. 

Various hearings were had before the Master, all hotly 
contested, and on September 27th, 1905, he filed his report, 
practically submitting the form of finad decree in the case. 
Exceptions were filed by the various parties, and by W. A. 
Huff on Jan. 2, 1906, but three days later, on January 5, 


85 


1906, after argument, the Master’s report was confirmed, 
and on the next day the final decree was signed. By the 
final decree it was decreed that the court had jurisdiction, 
that the complainants were entitled to the relief prayed in 
the bill, that W. A. Huff was insolvent, and that his prop¬ 
erty was so incumbered at the time the bill was brought 
that the enforcement of the remedies in the common law 
courts were wholly inadequate for the enforcement of the 
liens and claims of creditors; that the equities set up in the 
bill were susained by the record and evidence in the cause. 
It was also decreed that the several tax deeds executed by 
the Sheriff of Bibb County, and the various deeds of con¬ 
veyances made in pursuance of the tax sales, be declared 
void, and that no title passed thereunder, and particularly 
describing thirteen deeds as illegal and void and directing 
them to be cancelled. The decree then directed that the 
State and County taves for the following years be paid, 
to-wit: 1891, 1893, 1895, 1899, 1900, 1901, 1902, 1904, 

1907, and that the taxes due the City of Macon be paid for 
the following years, 1893, 1894, 1895, 1896, 1897, 1899, 
1900, 1901, 1902, 1903, 1904 and 1905. It was further or¬ 
dered that the assets be marshalled and the respective pri¬ 
orities and liens of the various creditors be enforced, that 
W. L. Bidwell, and F. E. Woodford, Executor, be paid the 
sum due them, that the lands on which the Scottish-Ameri- 
can Mortgage Company held a lien, be sold for the purpose 
of paying the indebtedness due that Company, and leaving 
the overplus for the payment of other creditors, also pro¬ 
viding for the payment of other creditors and intervenors, 
and specifying the manner of payment. 

It was further decreed that the sale of the properties be 
made, and unless made in accordance with a plan consented 
to by the parties, that they should be sold by commis¬ 
sioners, in the best manner possible, so as to bring the 
largest price for said property, and specially ‘That the com¬ 
missioners shall carefully guard against any and all 
schemes, if any there be, to chill the bidding or obtain the 
whole or any portion thereof, at less than its real value.” 


86 


The decree appointed E. Y. Mallary and John F. Cone as 
commissioners to make the sale, and provided for a public 
sale before the court house door, and that certain pieces of 
the property might be sold for one-third cash, and the bal¬ 
ance on deferred payments at seven per cent, interest, and 
that “all other properties be divided into such lots or par¬ 
cels as will in the judgment of said comjmissioners be at¬ 
tractive to purchasers, and be sold for one-third cash, one- 
third in twelve months and one-third in eighteen months, 
with interest on deferred payments at the rate of seven per 
cent., but with the privilege of paying the entire purchase 
price in cash.^^ 

Just prior to the signing of this decree, Mr. Huff objected 
to the payment of interest on the judgments of the judg¬ 
ment creditors for the reason that the property had been for 
some years in the custody of the court and had not earned 
an income sufficient to pay the interest. In overruling this 
motion. Judge Speer, on January 6, 1906, filed an opinion in 
which he stated: 

“It is now insisted, immediately before the decree 
is signed, that the judgment creditors are not en¬ 
titled to interest on their judgments for the reason 
that the property has been for some years in the 
custody of the court and not earning an income suffi¬ 
cient to pay interest. This does not seem to be a 
question which Mr. Huff, the respondent is in a posi¬ 
tion to urge. His obligation is clear, and that is to 
pay the judgments, both principal and interest. 

“The solicitors for the Scottish-American Mort¬ 
gage Company also are entitled to interest. They 
have a judgment granted in the usual way conform¬ 
ably to the laws of the State for their fees. This 
was incorporated in the general judgments of their 
clients, and I am unable to discover any reason 
which will deny them interest upon their liens. 

Now in case it should turn out that the property 
would not bring a sufficient sum to pay all the liqui¬ 
dated demands, it might be true that some creditor 
could insist that interest should not be allowed in 
order to enable him to obtain the principal of his 
debt, but Mr. Huff, the respondent, unhappily has 


87 


no such right. There are the judgments. There is 
the property. The latter was unproductive and 
brought about a state of insolvency before the cred¬ 
itors’ bill was filed. It has been practically unpro¬ 
ductive since that time, but through motives of hu¬ 
manity the court for many years, that is to say, 
practically during the entire pendency of the litiga¬ 
tion, has caused the Receiver to pay, or offer to pay 
to Mr. Huff, for the support of himself and family, 
a sum amounting to about $25.00 per week. This a 
part of the time he received, and a part of the time 
declined to take. A small balance is now in the Reg¬ 
istry of the Court. 

'‘We have done the best we could to serve and to 
protect this distinguished, aged, but financially un¬ 
fortunate gentleman. We have in hand his prop¬ 
erty. We have also before us the liens of his cred¬ 
itors, and to the extent that the property will go, 
those claims must be discharged, principal^ and in¬ 
terest. The law commands us and we have no other 
alternative. 

“The court will endeavor to appoint commission¬ 
ers of high probity and high business ability, and 
will, if need be, give them directions to make sales 
so as not to sacrifice any interest Mr. Huff may have, 
and the decree must direct that they shall sell the 
property not as an entirety or on the same day, 
but with the best and most favorable terms of ad¬ 
vertisement and display of the value of the property 
so as to bring about the largest purchase price.” 

On March 6, 1906, an appeal was taken from this final 
decree by the defendants, W. A. Huff, and the City of 
Macon, to the Circuit Court of Appeals, and not until Feb¬ 
ruary 26, 1907, did that court render an opinion (151 Fed., 
563). This mandate was returned on April 12, 1907, and 
eight days later made the judgment of the Circuit Court, 
to-wit, on April 20. This, however, was not put in execu¬ 
tion because of an appeal by Huff to the Supreme Court of 
the United States. This appeal was dismissed, but not until 
March 17, 1909. (214 U. S., 528.) The Circuit Court of 
Appeals had held that the Federal Court had jurisdiction 
of the case, that “where the property of a judgment debtor 


88 


is so encumbered by liens and taxes that although the judg¬ 
ment creditor has a lien thereon under the laws of the 
State, such lien cannot be enforced by execution, the cred¬ 
itor may maintain a suit in equity for the adjustment of 
the rights and priorities of the several lien holders,” and 
that the granting or refusing the permission to file a cross 
bill is wholly in the discretion of the court, and the refusal 
of such permission was a proper exercise of such discretion. 
In the opinion of the Circuit Court of Appeals in the dis¬ 
cussion of paving assessments, that court observes “that 
the decision of the learned Circuit Court was made soon 
after the Supreme Court announced its opinion in Norwood 
vs. Baker (172 U. S., 292), and before the rendition of the 
later judgments of the Supreme Court bearing on the same 
subject,” (the later cases are thought to change the rule an¬ 
nounced in the first) and further remarked that after the 
decree was entered, and before the appeal had been perfected, 
the plaintiffs tendered to the City the full amount of taxes 
claimed by it to be due on the “Kimball House” property, the 
Court of Appeals, decided that the City should have accepted 
that tender. It then amended the final decree of Judge Speer 
by allowing the City the full amount of taxes claimed by it, 
which the plaintiffs were willing to pay. 

With this modification by the Circuit Court of Appeals, 
the decree of Judge Speer was affirmed. If the affirmance 
or reversal of a judge of the Circuit Court in an inquiry of 
this sort is deemed of importance, here was no reversal. 
Judge Speer, in his decision, had left open the matter of the 
paving tax. True, the plaintiffs tendered the amount of 
this assessment. This, however, was not tendered until 
after the decree had been signed and the appeal entered 
and notice of appeal given. Besides this tender of the pay¬ 
ment of taxes was made to the City by the party offering it, 
and did not take place through any order of the court. The 
appeal having been entered, the matter at that stage was 
beyond the control of the trial court, and could have been 
dealt with only by the appellate court when the mandate of 
that court was made the judgment of the Circuit Court. 


89 


Huff appealed anew, now to the Supreme Court of the United 
States. There the matter was held until May 18, 1909, and 
when the judgment of the final court was made, the final 
decree of 1906 was for the first time ready for execution by 
the Commissioners. 

The decree having been affirmed, a sale of that portion of 
the property known as the “Kimball House” was effected 
on July 1, 1909. This was done by consent, and then the 
sale of the remainder of the property was postponed until 
December, 1909. This was done for the benefit of Mr. Huff. 
It is a well known fact that in the South little money is 
available until after the cotton crop is made and gathered. 
And besides, the postponement was necessary in the inter¬ 
est of Huff to give ample time for subdivision and advertise¬ 
ment. The solicitious interest of Judge Speer to make this 
property bring an ample price not only to pay all the debts 
of Huff, but to leave him something for his old age, appears 
throughout the entire record. It expressly so appears on 
page 1022 of the printed record, when the language fol¬ 
lowing is used: 

“We have done the best we could to serve and to 
protect this distinguished, aged, but financially un¬ 
fortunate gentleman. We have in hand his property. 
We have also before us the liens of his creditors, and 
to the extent that the property will go, those claims 
must be discharged, principal and interest. The law 
commands us and we have no other alternative. 

“The court will endeavor to appoint commissioners 
of high probity and high business ability, and will, 
if need be, give the directions to make sales so as not 
to sacrifice any interest Mr. Huff may have, and the 
decree must direct that they shall sell the property 
not as an entirety, or on the same day, but with the 
best and most favorable terms of advertisement and 
display of the value of the property so as to bring 
the largest purchase price.” 

The public sale was made by upright and skillful men, 
who had been named as commissioners, the one a banker 
and the other a real estate man, on the first Tuesday in 


90 


December, 1909. The property brought at this sale $70,700. 
The city lots known as the ''Armory property’^ of the esti¬ 
mated value of $15,000, was not sold. There are several 
interventions in the record wherein third persons claim 
that they have bought certain lots of this property from 
Huff and paid him therefor. These interventions are not 
yet determined, or the rights of the claimants ascertained. 
However, through the other sales enumerated, enough 
money was realized to pay the indebtedness of Mr. Huff, 
and the costs and expenses incident to the Huff cause. 

The foregoing is an outline of the proceedings had on the 
main case. There are certain features about which specific 
complaints have been made by W. A. Huff and T. S. Felder. 
The attention of the Committee is respectfully called to the 
easy explanation and avoidance of each of said complaints. 

When the creditors’ bill, based upon judgments prev¬ 
iously obtained in the State courts, executions, and returns 
of nulla bona, was originally presented on August 5, 1899, 
by those famous and experienced solicitors in equity, the 
late Olin J. Wimberly and his partner the late, the Hono¬ 
rable John I. Hall, Judge Speer issued a rule nisi calling on 
the defendants to show cause why a receiver should not be 
appointed, and the injunction prayed for granted. The 
date of the hearing was left blank so that a date might be 
agreed upon which was satisfactory to counsel, or so that 
either party might on motion bring on a hearing. Clem P. 
Steed, a member of the Macon Bar, of the highest charac¬ 
ter, was appointed temporary receiver, with power only to 
hold the property until the hearing on the rule nisi. There 
was no such hearing; no motion asking it; no motion to dis¬ 
charge the receiver, but four days thereafter Mr. Huff came 
before the court and filed a petition asking that the income 
from the property be turned over to him for the support of 
himself and family. Since this could only be done through 
the receiver, the motion was in a sense a ratification of his 
appointment. 

But this was not all. His application expressly stated, 
"for the present he (Huff) will not ask your Honor to 


91 


modify or change said order in any other respect.’^ This 
appears from the printed record in the Huff case, page 32. 
This itself was ratification. The Committee will look in 
vain through the record for any request or motion made to 
the trial court by the defendant Huff to modify or vacate 
the order appointing the receiver. Indeed, not only did he 
in writing express his desire that the property should be 
administered and sold by the court (Sten. Record, p. 1380), 
but in his oral testimony before the Committee (Steno¬ 
graphic Record, p. 1382), he expressly re-stated his wish and 
willingness that this be done. Since the court could admin¬ 
ister the properties through the receiver only, here is double 
additional ratification by Huff of the appointment of that 
receiver. The entire record will show that the creditors' 
bill was shrewdly utilized by him as a shelter or protection 
against his creditors, while under the kindly orders of 
Judge Speer he continued for years to receive the income 
and rents collected by the receiver and turned over to him 
for his support. 

The fact of his assent to the appointment of the perma¬ 
nent receiver also appears from the decree of May 31, 1902, 
which recites that the cause ''had come on regularly to be 
heard; it appeared that such appointment was necessary, 
and none of the parties to said cause contesting the neces¬ 
sity of such appointment." (Huff Record, p. 132.) 

This judgment of the court, it is submitted, can not now 
properly be made the subject of collateral and verbal attack. 
Indeed, no complaint of this action was made until an 
appeal was entered from the final decree of January 6, 1906, 
and then to the Circuit Court of Appeals only. Then, it ap 
peared that the consent to the receivership might affect the 
amount of costs or expenses taxable against Huff. A con¬ 
troversy arose between Huff and his counsel, Mr. Proudfit 
and Mr. J. L. Anderson. It appears from the testimony of 
Huff (Stenographic Record, p. 1342), that on January 31, 
1906, he obtained from Mr. Proudfit a letter stating that 
"The court in its discretion appointed such receiver, and 
that no such consent was given;" and that this letter was 


92 


used before the Circuit Court of Appeals. If this is true, 
the Committee may well consider how it was that a per¬ 
sonal letter from defendant’s own counsel to the defendant 
himself, could be used as a part of the record on appeal, 
or in any manner before the appellate court. The letter, 
while written by a gentleman of honor, was not evidence. It 
did not have the sanctity of an oath. Mr. Huff stated that it 
was obtained to contradict the affidavit of Mr. James L. 
Anderson, attorney for the Scottish-American Mortgage 
Company, in which Anderson swore that Proudfit got up in 
open court and stated there was no opposition from his side 
of the case to the appointment of a permanent receiver. 
(Stenographic Record, p. 1350.) Whatever may be the 
propriety of admitting this letter on appeal, this contro¬ 
versy between Huff and his former counsel cannot be held 
to affect Judge Speer. The order appointing the perma¬ 
nent receiver does not purport to be a consent order. It 
simply recites that the parties did not contest the necessity 
of the appointment, and no one contends, or has contended, 
that it was contested. What then is Huff’s complaint? The 
judgments, executions, tax fi. fas. and the like against him 
were fully ascertained and proven. He never contested the 
validity of the claims of those non-resident creditors, and 
the intervening creditors, who for so many years he has 
defeated of their money. Loans secured by mortgage or 
deeds to secure debt to real estate, are the chief basis of 
credit of the people of many states, particularly in the 
South. What, it may be inquired, would be the result to the 
credit and the condition of the Southern people if all debtors 
giving such security should pursue the course which has 
been adopted by Huff? Having used every possible expe¬ 
dient for delay, and every possible appeal to delay his cred¬ 
itors in their righteous demands, and having abused the 
sympathy of the Judge for his age and supposed unfortu¬ 
nate condition, and his kindly purpose to make the property 
bring as much as possible so as to secure the defendant 
comfort in his old age. Huff then turned upon the judicial 
officer who had been his benefactor, with a savage and mer- 


93 


ciless ferocity unparalleled in the, annals of jurisprudence. 
He penned an address to the Judge who had striven to aid 
him in every possible way, an address setting forth calum¬ 
nies as vile and false as any ever conceived by the convicted 
villains in the cells of Newgate and Sing Sing, toward the 
officers of the law whose duty had contributed to their con¬ 
demnation. For this he was tried and convicted by another 
Judge, a Judge whom Judge Speer does not know and has 
never seen. 

At length before this Committee, he was pressed for a 
statement of his complaint against Judge Speer. He replied 
(Stenographic Record, p. 1382) : “My chief complaint 
has been all along that my property was outrageously sac¬ 
rificed. That is the gist of the whole business. If the prop¬ 
erty had been sold right, I would have a handsome sum 
now to retire on.” 

Now see how plain a tale will put him down. Take fhe 
property on Fourth Street, known as the Kimball House. 
On the hearing before Judge Speer incident to the final 
decree, evidence was taken as to its market value. Huff 
himself testified (Huff Record, page 580) : “Well, I think 
properly handled, I think it should sell very readily for fif¬ 
teen thousand dollars.” The sale was agreed to by Huff. It 
sold for $21,500, that is, $6,500 more than the sworn esti¬ 
mate of its value given by Huff. 

Again'there was sold a tract of 18.08 acres of land in 
Vineville. This was sold by the receiver June 26, 1905. 
This sale was made to the State of Georgia, and on the 
land now stands the State Academy for the Blind. The 
sale was consented to both by W. A. Huff and his attorney. 
These eighteen acres and a fraction were a part of the 
Brantley place. Huff had testified to its value. (Huff Rec., p. 
577.) He said: ‘T think it is worth $500 an acre.” At 
the sale it brought $600 an acre, that is to say, 16.21 acres 
of this land brought $600 for each acre sold. Huff had con¬ 
sented to the sale and its method, and the proceeds were 
sixteen hundred and twenty-one dollars in excess of his 
sworn estimate of its value. 


94 


In addition to this a small tract of 1.87 acres was sold 
by the receiver. It had been valued by Huff in his testi¬ 
mony (Huff Record, p. 578), at “four or five hundred dol¬ 
lars.” This tract was sold by the receiver at the rate of 
$600 per acre, or $1,122, thus bringing $622 more than the 
highest valuation put on it by Huff. 

We have now discussed two sales made through his con¬ 
sent. Having consented to the method he cannot now object. 
What is the aggregate result? The officers of the court 
have secured from the property thus sold a total of $8,743 
more than the highest valuation put on this property by 
Huff himself. Where then is the outrageous sacrifice to 
which he testifies? 

We now come to the public sale made in pursuance of 
the final decree of January 6, 1906, confirmed by Judge 
Speer, and on appeal affirmed by the Circuit Court of Ap¬ 
peals. As to the value of this property. Huff also testified 
(Huff Record, pp. 570-579). The highest valuation he 
placed thereon was $48,165. When sold by the officers of 
the court it actually brought $70,700. This was $22,535 
more than the highest estimate of its value Huff himself 
has given under oath. 

Thus it will be seen that the officers of the court have 
realized for Huff an excess of value over his estimates of 
$31,278. 

But it is said and stressed with great emphasis by Mr. 
T. S. Felder, that when the property was sold at public 
sale and brought $70,700, that the fund so produced was 
more than sufficient to pay Mr. Huff’s indebtedness by 
$40,000. In this statement, as in much else that he said, it 
will be found that Mr. Felder is as clearly wrong as he is 
clearly prejudiced. This sale was in December, 1909. The 
final decree had been made nearly five years before. In¬ 
terest on all of the indebtedness was running all the time, 
and the first definite data the record affords is given by 
the report of the Master filed on July 12, 1912. All the 
time Huff was hotly contesting every possible point, and 
when driven by inexorable law and the rulings of the higher 


95 


court from one position, would promptly seize upon another, 
and continue the fight. At the date of this report it appears 
that there was due to Huff’s creditors $54,511.71. This 
does not take into consideration the payment of $10,880 
which had been paid to the Scottish-American Mortgage 
Company, and the indebtedness for taxes which he had per¬ 
mitted to accumulate until they aggregated the amazing 
sum for such indebtedness of $20,513.27. This made a 
total indebtedness, principal and interest of $75,024.98. 
This does not take into consideration the expenses of his 
protracted, defiant and unnecessary litigation. These con¬ 
sisted of the compensation of the receivers, commissioners, 
stenographers, and the like, and amounted to $7,408.20. 
This made his total indebtedness at that time $82,433.18, 
and the disputed claims of the solicitors for the plaintiffs. 
Hall & Wimberly, and his own solicitor, Alexander Proudfit, 
which were yet unprovided for. After the sale his taxes on 
the property ceased. These were now to be paid by the 
purchasers. In the meantime, interest had accumulated 
pending his appeal from the order confirming the sale 
to the amount of about $6,000. Deducting this from his 
total indebtedness, including the expenses paid the officers 
of the court, in order to ascertain what he owed at the time 
of the sale, and we find that the sum was $76,433.18. 

Nor should it be forgotten that only 5/7 of the proceeds 
of the Kimball House property, which brought $21,500, 
were available to creditors. Of this and of the costs of the 
proceeding, which were carefully and judicially ascertained, 
Mr. Felder obviously took no account. And he has also 
taken no account of the interest which rapidly accumulated 
on the sum total of the indebtedness after the sale of 1909. 

Mr. Felder is equally in error in his statement (Steno¬ 
graphic Record, p. 1862), that at the time of the sale in 
1909, ‘There was something like thirty-three thousand dol¬ 
lars in the coffers of the court.” A reference to the record 
will easily show that four years before, namely, June, 1905, 
$10,880 had been taken out of the “coffers” by consent, 
and had been paid into the “coffers” of the Scottish-Ameri- 


96 


can Mortgage Company. This left in the “coffers’^ afore¬ 
said only $22,120. Of this 2/7, or $6,320 was being care¬ 
fully preserve in the “coffers’^ for Mrs. Jennings and Edi¬ 
son Huif, and was not available for creditors, so that there 
were only about $15,000 for the creditors in the ^‘coffers’^ 
at that time. 

Much has been said by Mr. Felder that the property of 
Mr. Huff at the time of the filing of the bill, and at the 
time of the decree, was of greater value than the amount 
of his indebtedness. It is unfortunate then, for him, that he 
would not pay his indebtedness. Mr. Felder says he was 
solvent, and he doubtless has in mind the definition of in¬ 
solvency as provided by the bankruptcy act, namely: 

“A person shall be deemed insolvent within the 
provisions of this act whenever the aggregate of his 
property shall not, at a fair valuation, be sufficient 
in amount to pay his debts.” (Sec. 1. par. 15.) 

But not only has this definition of insolvency been much 
criticised (Collier on Bankruptcy, 9th Ed., p. 9), but it is 
thought to put creditors at the mercy of their debtors. 
(Idem.) 

This, however, is not a bankruptcy case, although widely 
published as such. It is a creditors’ suit in equity. Its 
chief basis is not insolvency, but the inability of judgment 
creditors to subject the debtor’s property by ordinary legal 
remedies. This is plain enough. But if it were otherwise, 
a far loftier tribunal than that in which Judge Speer pre¬ 
sided, has assumed the responsibility. The Circuit Court of 
Appeals in this case (151 Fed., p. 563) declared: 

‘‘Where property of a judgment debtor is so incum¬ 
bered by liens and taxes that such lien cannot be ef¬ 
fectively enforced by executions, the creditor may 
maintain a suit in equity for the adjustment of the 
rights and priorities of the several lien holders.” 

It follows that even though Huff had been as rich as 
Croesus, had he continued to refuse to pay his judgment 


97 


debts, the remedy recognized by the Circuit Court of Ap¬ 
peals of this Circuit would have been available to his 
creditors. 

Much has been said about the fee of Messrs. Hall & 
Wimberly. This fee to the uninformed would seem large. 
But the observant will consider the stubbornness and con¬ 
tinuity of the defense, the reiterated appeals, the complex¬ 
ity of the litigation, the tremendous expenditure of effort 
on the part of counsel, and the sum of more than one hun¬ 
dred thousand dollars brought into court. Such experi¬ 
enced witnesses as Judge John P. Ross, now Solicitor-Gen¬ 
eral, James L. Anderson, attorney for the largest creditor, 
and others, who might be mentioned, testified before the 
Master that ten thousand dollars would be reasonable com¬ 
pensation. This upon the theory that the services of com¬ 
plainants’ counsel had inured to the benefit of all cred¬ 
itors participating in the result of the litigation, it was 
held should be paid out of the fund brought into court for 
distribution. This had been the familiar practice, but it 
was reversed and an entirely new rule adopted by the Cir¬ 
cuit Court of Appeals. However, Senior Circuit Judge 
Pardee, long experienced on the bench, indeed, now the 
Dean of all Judges of the United States Courts, dissented. 
Thus we see Circuit Judge Shelby and District Judge 
Maxey, on the one side, and Senior Circuit Judge Pardee 
and District Judge Speer on the other side of this interest¬ 
ing question. We refer to the authorities cited by Judge 
Pardee in his dissenting opinion, which will convince the 
fair-minded that if Judge Speer was in error, it was an 
error most natural, and one into which many other courts 
had also fallen. (See 195 Fed., p. 430.) 

Mr. Felder also complains (Stenographic Record, p. 
1854), that just before the final decree was entered “we 
asked to be allowed to file a cross bill against the Scottish- 
American Mortgage Company, and the court refused to 
allow it.” 

This ruling was also reviewed by the Circuit Court of 
Appeals (151 Fed., 566). The action of Judge Speer was 


98 


sustained. The Court of Appeals in its opinion declaring: 
“The learned Circuit Court we think properly exercised its 
discretion in refusing to permit the cross bill };o be filed 
under the circumstances of this case.” 

The complaint that no interest was allowed on the fund 
in the registry of the court is elsewhere discussed in this 
defense, and that discussion will not be here repeated. 

There remains only to consider the alleged delays in 
this protracted litigation. The most critical scrutiny of the 
record will show that none of these are fairly chargeable to 
Judge Speer. The first delay was in the perfection of the 
pleadings, the second, in the taking of testimony. During 
this period fifteen applications for extension of time were 
made by the parties, many were made by Mr. Huff himself, 
and in no case was any objection made save by the court, 
and in each instance cause was shown for such extension. 
All through the record it will appear that Judge Speer was 
attempting to speed the cause. (See Huff Record, p. 131.) 
Because Mr. Talley, first appointed examiner, had other en¬ 
gagements as court stenographer, his appointment was re¬ 
voked, and another examiner appointed. A considerable 
delay is also ascribable to Mr. Felder’s legislative duties to 
the State. Such services are deemed so vital to the general 
weal, that now by Act of the General Assembly the attend¬ 
ance of members on its deliberations is made a legal excuse 
from their attendance upon the courts. 

Other and less excusable delays were occasioned by ap¬ 
peals of Mr. Huff from the final decrees; that they were 
finally unsuccessful we have seen, but in the meantime as 
the result, three years and three months elapsed while the 
case was in the appellate courts. During this period the 
interest on the indebtedness and the accruing taxes accumu¬ 
lated to over eleven thousand dollars. Again five months 
were lost because of Huff’s unsuccessful appeal from the 
decision confirming the sale of the property, and eleven 
months more pending the appeal of the Hall & Wim¬ 
berly fee. An effort was made to have the fund distributed 
in part, reserving a sufficient sum in the registry to pay this 


99 


fee if it should be finally allowed as directed by the court. 
This would have been a great relief to creditors, but to this 
also Huff objected through his counsel. 

Thus we have seen that four years and seven months fOf 
delay was caused by Huff's appeals. Finally, on May 1, 
1913, a large share of the fund in the registry of the court 
was distributed by decree. But several appeals were at 
once entered, which have prevented the distribution of the 
balance, and although eight months have elapsed, these have 
not yet been argued in the appellate court. 

There is thus presented the singular anomaly of a Con¬ 
gressional investigation of a case which is yet pending and 
undetermined in the appellate courts having jurisdiction. 

A scrutiny of the record will further show that the decis¬ 
ions of Judge Speer were rendered often with great prompt¬ 
itude, always with reasonable promptness, and the testi¬ 
mony of the clerks and other officers of the court will show 
that again and again he protested against the delays, and 
from the bench declared them to be a reproach to the ad¬ 
ministration of justice. Save these delays, for which he is in 
no sense responsible, it is respectfully submitted that the 
case throughout is most creditable to the administration of 
justice in the United States Court for the Southern District 
of Georgia. Creditable for the humane and successful effort 
of the Judge to save a remnant of his fortunes for this aged 
debtor, whose desperate and uncalled for malignity was not 
even suspected; creditable because of the kind provision 
made for his support; creditable because notwithstanding 
his widespread calumnies, save a temperate statement made 
in declining to try the rule where he had been cruelly ma¬ 
lignant, the Judge has borne in silence the libels which 
malice and conspiracy have spread throughout the length 
and breadth of the land, creditable because of the recovery 
and rehabilitation of an estate heavily encumbered and at 
first hopelessly insolvent. 

Perhaps the greatest master of modern fiction devoted a 
noble effort of his genius for the reform of that English 
Court of Chancery where Thurlow, Erskine and Eldon sat. 



100 


In the famous suppositious case of Jarndyce vs. Jarndyce, 
he makes an admiring solicitor say: '‘that on numerous 
difficulties, contingencies, masterly fictions, and forms of 
procedure in this great cause, there has been expended study, 
ability, eloquence, knowledge, intellect, Mr. Woodcourt, high 
intellect. For many years, the^—a—I would say the fiower 
of the Bar, and the—a—I would presume to add, the ma¬ 
tured autumnal fruits of the Woolsack—have been lavished 
upon Jarndyce and Jarndyce. If the public have the benefit, 
and if the country have the adornment, of this great Grasp, 
it must be paid for in money, or money’s worth, sir.” 

“Mr. Kenge,” said a friend of his client, “Excuse me, 
our time presses. Do I understand that the whole estate is 
found to have been absorbed in costs?” 

“Hem! I believe so,” returned Mr. Kenge. “Mr. Vholes, 
what do you say?” 

“I believe so,” said Mr. Vholes. 

“And that thus the suit lapses and melts away?” 

“Probably,” returned Mr. Kenge. “Mr. Vholes?” 

“Probably,” said Mr. Vholes. 

By contrast, what, it may be asked, is the result in this 
American Court of Chancery? The estate has been re¬ 
deemed ; its value far more than doubled; the creditors have 
been largely paid, and when the pending appeals are dis¬ 
posed of the others will be paid; all the defensive and dila¬ 
tory expedients of a most protracted, unjustiafiable, and 
unnecessary defense have been slowly but surely overcome 
by the majesty of the law. All costs and expenses have been 
righteously ascertained and have been or will be fully paid. 
Every dollar accounted for. Every creditor will be paid 
in full and unless the veteran litigant shall extend the rem¬ 
nant of his life in idle and costly appeals, there will have 
been accomplished the purpose the court has cherished 
from the first, to save for him from the remnant of his 
estate, epough to enable him to spend his last days in 



101 


KING LOAN. 

Mr. W. E. Simmons testified (Stenographic Record, p. 
730) : 

I took the order dismissing my cases, and called on Mr. 
King for the unconsumed portion of my fees (costs) * * * 
Well, he was rather embarrassed, and he said, ‘‘Mr. Sim¬ 
mons, I haven’t got the money.” I said, ‘‘You ought to 
have it. It is a trust fund put in here and you ought to 
have it.” Then he said, “Judge Speer has it.” “Well, what 
are you going to do about it?” I said. He said, “Well, I 
cannot pay it now.” Then I finally took his note for the 
money and he paid it along, a part of it at a time, and be¬ 
fore he died he had paid me back all of it. 

The Chairman: How much did this amount to. Colonel, 
do you remember? 

Mr. Simmons: I cannot say. It was $1,000 or $1,200, 
perhaps a little more. He was a year or two in paying it 
off. He paid me money as fast as he could get it. I under¬ 
stand—I do not know this of my own knowledge—I under¬ 
stand that Judge Speer borrowed the money from him and 
paid it back to his widow after the Clerk’s death. I have 
been informed so by prominent members of the Bar. 

On cross-examination he testified (Stenographic Record, 
page 54) : 

Mr. Callaway: When was this that you say Mr. King 
told you that Judge Speer had the money that you had de¬ 
posited to cover fees? 

Mr. Simmons: It was the very day I dismissed my cases 
down there. The records will show the date. I do not know 
now. 

Mr. Callaway: Was it as early as 1890, or after 1890? 
Was it after the Gay case? 

Mr. Simmons: No, it was not. I had dismissed my 
cases in Macon before the decision in the Gay case, and some 


102 


time after I dismissed my cases pending in the Eastern 
Division at Savannah. It was some time after I dismissed 
these at Macon. / 

(The Gay case was tried in Macon in January, 1888, 33 
Fed., 636.) 

The cost records of the Clerk at Macon show that the 
total amount of costs unearned refunded to W. E. Simmons, 
attorney for the New England Mortgage Security Com¬ 
pany, and other loan companies, on the dismissal of his cases 
at Macon, was $226.68, and that these costs were paid to 
Mr. Simmons by the Clerk prior to April 23, 1888, except 
$10.70, which was paid October 3, 1891. 

The records of the Clerk at Savannah show that the total 
amount of unearned costs refunded by the Clerk to W. S. 
Simmons on account of cases dismissed by him at Savannah 
was $172.43, and that all of these costs were repaid to 
him between the dates of December 8, 1888, and January 
18, 1889; this latter fact appearing from the statement fur¬ 
nished by the Clerk, taken from the records at Savannah. I 
refer to Stenographic Record, page 1698. 

Mr. Simmons’ testimony continued on page 755, as fol¬ 
lows : 

Mr. Callaway: You also stated that you understood 
Judge Speer had paid Mr. King’s widow? 

Mr. Simmbns: I understood so. 

Mr. Callaway: Do you not know that Mr. King was a 
bachelor? You mean Mr. King who was Clerk of the court 
at Savannah? 

Mr. Simmons: Yes. 

Mr. Callaway: Do you know that Mr. King was a 
bachelor and never was married? 

Mr. Simmons: I do not know about that, but I know 
he had legal representatives. A prominent lawyer at Sa¬ 
vannah told me that directly 

in Savannah who said that after King died he had made 
arrangements with a gentleman in Savannah to let Judge 
Speer have the money to pay back into the estate. 

The witness was then- shown the following papers deal- 


103 


ing with the making of the King loan, and the payment 
thereof: 


Bethany, Brooke Co., W. Va., August 17, 1886. 

My Dear Judge: I enclose herewith the Bank of Wheel¬ 
ing dft on New York for $492.20, which added to your re¬ 
ceipts which I have, dated May 18, 1886, for $707.80, makes 
the aggregate $1,200.00 as contemplated. I enclose also a 
note for the amount in accordance with your suggestion, 
which you will please sign and return to me here. 

I have made no other average of the two amounts .except 
to antedate the note a few days which will make the first 
quarterly installment due Nov. 5, 1886. 

I regret the slight delay in sending the draft which has 
been wholly unavoidable. 

For some reason, I failed to get from Col. Wade your 
Washington address, but I do not think it of vital import¬ 
ance, providing you are still in that city. I shall write Col. 
Wade that I have addressed you at Washington, D. C. 

I am. 

Yours truly, 

H. H. KING. 

Hon. Emory Speer, Washington, D. C. 

I will return your receipt when I hear from you. 

NOTE. 

$1,200.00 Savannah, Nov. 8, 1886. 

For value received, I promise to pay H. H. King, or 
order ($1,200.00), twelve hundred dollars with interest 
at 6 per cent, (six) from the 5th of August, 1886. Pay¬ 
ments to be made from this date monthly of fifty dollars 
each, or quarterly of $150, one hundred and fifty dollars 
each. 

EMORY SPEER. 


LETTER. 

Macon, Ga., April 10, 1890. 

My Dear Friend: Referring to your kind telegram of 
this date, I write to request you to draw at sight on m.e 
and pay for me a note I owe to Mr. H. H. King, the Clerk of 
the United States Court. It is, I think, for $1,200.00 (one 
thousand twelve hundred), with interest from the 5th of 
August, 1886, at 6 per cent. There may be a small credit. 


104 


but I am not sure. Please calculate the interest for me, and 
if you can do so, draw on me at sight cashing the draft 
through any of the banks here for the amount of principal 
with interest added and I will pay the draft on presenta¬ 
tion. The money awaits it. Mr. King, I presume, will have 
the note, which I beg you to forward to me. Begging your 
kindly attention to this matter the day you receive this, I 
am, with great good will and esteem. 

Very sincerely yours, 

EMORY SPEER. 

If convenient, draw through Exchange Bank, or First 
National Bank of Macon. 

Savannah, Ga., April 11th, 1890. 
Hon. Emory Speer, Macon, Ga. 

Dear Sir: Immediately upon receipt of your letter this 
morning, we called on Mr. King and took up your note— 
principal $1,200.00, interest from August 5th, 1886, at 6 
per cent., $265.20—a total of $1,465.20. There were no 
credits. We enclose the note herein. As requested by you, 
we have this day drawn a sight draft on you for $1,465.20, 
being the total paid out by us for your account. Gladly 
serving you. 

We remain very truly, 

CHARLTON & MACKALL. 

Endorsement: 

Charlton & Mackall paid Mr. King $1,465.20 for Judge 
Speer. (Letter explains.) 


DRAFT. 


$1,465,20. Savannah, Ga., April 11, 1890. 

At sight pay to the order of ourselves fourteen hundred 
accouTt of to 


CHARLTON & MACKALL. 


To Hon. Emory Speer, Macon, Ga. 

Endorsement: 

Pay to the order of Savannah Bank & Trust Co. 

CHARLTON & MACKALL. 


Pay J. W. Cabaniss, Cashier, or order for colleotion 
acct. of Savannah Bank & Trust Co . collection 

JAS. H. HUNTER, Cashier. 


105 


The following endorsement was on the back of the note 
(Stenographic Record, p. 1693) : 

^Taid in full this 11th day of April. Principal, $1,200, 
interest, $265.20. H. H. KING.” 

After seeing the original letters, note, and draft cover¬ 
ing this transaction, the witness stated that he was unable 
to identify Mr. King’s signature or writing, and further 
stated that he did not know that Mr. King had died un¬ 
married in 1904, but supposed he was married. He further 
stated that his information was that the loan was settled 
up with Mr. King’s estate. 

In response to questions from the Chairman (Record, p. 
766), Mr. Simmons stated that he did not intend to say 
that the transactions referred to in the letters, note, and 
draft between H. H. King and Judge Speer, referred to 
the money that he had paid to the Clerk, and that it may 
have been a different transaction; that there was nothing 
in either of the letters, note, or draft introduced in evi¬ 
dence to indicate that they were the same transaction, and that 
there was nothing in the transaction of the loan referred to 
in the correspondence, note and draft above set out indicating 
that it had the remotest connection with his deposit; that 
he could not swear that any money he paid King, or into 
court, went to Judge Speer, and that he knew nothing except 
what Mr. King had told him. 

P. W. Meldrim (Record, p. 1658) testified as follows: 

'‘He (King) told me, in substance, that he had let Judge 
Speer have $1,200 out of the register of the court, that 
demand had been made upon him, Mr. King, for the money, 
and that he could not get it out of Judge Speer. I told 
Mr. King, ‘That is all right, you won’t have any trouble 
in getting the money.’ I did not tell Mr. King that fcihere 
was a statute on the subject, but I said, ‘You write Judge 
Speer and tell him you must have the money.’ * * 

On the 11th day of April, 1890, about that date, I think 
that was the date—Mr. King came to my office very radiant 
and happy, and said he had gotten his money. I said, ‘Well, 


106 


I did not doubt but what you would get your money/ I 
asked him how he got it, and he said that on the 11th day of 
April, 1890, Mr. W. W. Mackall, of the law firm of Charlton 
& Mackall, asked him if he had a note signed by Judge 
Speer, that he replied that he had, and that Mr. Mackall 
then said, he wanted to buy it. Mr. King added that he 
smiled then, and Mr. Mackall asked, ‘Don’t you think he 
will pay me?’ Mr. King declared that Mr. Mackall then paid 
the note, which he said amounted with interest to $^1,460.20, 
and this money Mr. King said, he deposited in his bank in 
Savannah on April 11th, 1890.” 

The witness further stated that he had made a written 
memorandum of the transaction and the incidents at the 
time. 

On cross-examination, beginning on page 1690, Mr. Mel- 
drim stated that Mr. King had never shown him Judge 
Speer’s note, and that he would not recognize Mr. King’s 
signature in the course of the years, and that he thought that 
Mr. King died perhaps in 1900, and that he did not think 
Mr. King was a married man, and he never knew of his 
family. He recognized Judge Speer’s signature on the 
$1,200 note, dated November 8, 1886, a copy of which ap¬ 
pears in the record and is quoted above. He also identified 
Judge Charlton’s signature to the draft drawn on Judge 
Speer for $1,465.20 in payment of the note, and expressed 
the opinion that this was the transaction which he had testi¬ 
fied Mr. King spoke to him about. He could not remember 
that Mr. King had told him that this money loaned to Judge 
Speer was taken out of the registry of the court, and did 
not have the slightest knowledge of whether Judge Speer 
owed Mr. King a dollar or not, where the money came from, 
or whether it was cost money or not. 

‘T rather thought afterwards, from a conversation that 
I had in June last year with Judge Simmons, that it was 
cost money that had been deposited, but that is purely 
hearsay.” 

He stated that Mr. King said that demand had been made 
upon him for the money in the registry of the court, and that 


107 


he didn’t have it, that he had let Judge Speer have it. The 
witness also stated that he understood Mr. Simmons to say 
that the amount of costs paid back to him was $1,200, 
but that Mr. King had never said a word to the witness 
about Mr. Simmons, and that this was the only transaction 
of borrowing or loaning between Mr. King and Judge Speer 
that he had ever heard of, or knew anything about, unless 
it be the Simmons business, and that he knew nothing 
about the Simmons matter except what Mr. Simmons had 
told him. 

W. W. Mackall (Record, page 1734), identified the letter 
written by Judge Speer to Charlton & Mackall, from Macon, 
April 10, 1890, which appears above; and the reply of 
Charlton & Mackall to Judge Speer, which appears above, 
and in the Record, page 1736, enclosing the note; also 
Judge Speer’s letter to W. G. Charlton, dated April 12th, 
1890( Record, page 1737), as follows: 


April 12, 1890. 

My Dear Sir: I am due you my cordial acknowledge¬ 
ments for the promptness with which you arranged for me 
my debt to Mr. King. It had been treated as a demand note 
& Mr. King having for the first time on Thursday intimated 
that its payment was desired, I was exceedingly anxious 
to pay him with promptitude, this your courtesy enabled 
me to do, I have paid this morning your sight draft for 
$1,465.20, & I again thank you for your kindly consideration. 

I am with high regards. 

Very truly yours, 

EMORY SPEER. 

Hon. W. G. Charlton.” 

Mr. Mackall further testified that upon receipt of Judge 
Speer’s letter, he looked up Mr. King, and that the tele¬ 
gram referred to in Judge Speer’s first letter was merely a 
telegram to Judge Charlton asking him if he would be in 
Savannah the next day, and Judge Charlton replied that he 
would be there, and would be glad to serve him. 

The only other testimony on the subject of the King loan 
appears in the testimony of Judge Speer, in response to the 
inquiry as to the transaction with Mr. King, and appears in 


108 


his testimony (Record, p. 2513), which is fully corrobo¬ 
rated by the documentary evidence quoted above, and ap¬ 
pear in the Committee’s record. 

It seems hardly necessary to comment upon the incon¬ 
sistencies between the testimony and inferences of Mr. Sim¬ 
mons and the undisputed facts shown by the above recited 
written instruments and facts as disclosed in the records 
of the Clerk of the court at Macon and Savannah. In the 
first place the total amount of costs refunded to him on 
the dismissal of the cases at these two places was $399.11, 
and all of these costs were repaid to him by the Clerk and 
so entered on his docket long prior to 1890. So that the 
King loan to Judge Speer could not possibly have had any 
Effect on Mr. King’s alleged embarrassment in returning 
these costs to Mr. Simmons. 

The letter from Mr. King, written from Bethany, W. Va., 
in August, 1886, transmitting a New York draft on a 
Wheeling Bank for $492 of this loan, indicates clearly that 
at least this part of the loan did not come from costs or the 
registry of the court, and the amount of Col. Simmons’ 
costs to which he was entitled to a refund being $399.11, 
could not possibly have constituted any considerable part of 
the remaining $700 of this loan. Mr. Simmons testified 
that the costs were paid to him from time to time by Mr. 
King in small amounts. This is not corroborated by the 
written records of the dead Clerk. Mr. Simmons’ annun¬ 
ciation, based upon hearsay, of Judge Speer’s paying this 
loan back to Mr. King’s widow after Mr. King’s death, 
seems a bit inconsistent with the undisputed fact that Mr. 
King died an old bachelor, and was never married, and that 
the loan was completely paid up through Charlton & Mackall 
in April, 1890, and that Mr. King did not die until 1904. 

Mr. Meldrim’s suggestion, based in like manner upon 
hearsay, that Mr. Mackall undertook to “buy” the note 
from Mr. King is not borne out by the entry “paid” in 
Mr. King’s handwriting on the back of the note, dated April 
11th, 1890; nor by the statement of Mr. Mackall that the 
note was paid by his firm with the proceeds of a draft 


109 


drawn by them on Judge Speer, which was promptly paid. 

How much of these suggestions and innuendoes on the 
part of Mr. Simnxons and Mr. Meldrim arose out of the 
conversation between these two parties referred to in the 
testimony of Mr. Meldrim, and vaguely referred to in the 
testimony of Mr. Simmons, is not known. 

In addition to the above, it is deemed proper to state 
that funds placed in the registry of the court cannot be 
withdrawn without an order of the court, and checks signed 
by the Judge and countersigned by the Clerk. The provis¬ 
ions of the law requiring a complete record of all these 
transactions. The funds in the registry of the court are 
from time to time duly checked and audited. These records, 
together with the Deputy Clerk at Savannah, who kept the 
same at the time, were accessible to the Committee, and 
offered to the Committee for the purpose of ascertaining 
whether any funds had at any time, particularly during the 
time of the King loan, were ever withdrawn from the reg¬ 
istry of the court; also the records of the bank at Savan¬ 
nah which was the registry of the court. Neither of these 
records show that any funds which could have possibly 
constituted any part of the King loan were taken or ex¬ 
tracted from the registry of the court and subsequently re¬ 
turned thereto during the period from November, 1886, 
when the loan was finally closed by note, until April, 1890, 
when it was finally paid as stated above, or at any other 
time. 

In the course of Judge Speer’s testimony before the Com¬ 
mittee, pointing to Honorable Marion Erwin, who was sit¬ 
ting in the immediate presence of the Committee, Judge 
Speer said, as nearly as can be recalled: 

“There sits Mr. Marion Erwin, who was the Clerk of the 
District Court in 1886, and the Deputy Clerk of the Circuit 
Court. With all his skill as bookkeeper and accountant, 
he kept the accounts of the Clerk and with the registry of 
the court.” 

Pointing to Mr. Geo. W. Owens, he said: 

“There sits Mr. Geo. W. Owens, the Standing Master 


110 


in Chancery, who, although one of my counsel, is a man of 
high honor. It was his duty practically every term to pass 
upon the accounts of the Clerk in the registry of the court. 

“The officers of the Merchants^ National Bank, the reg¬ 
istry, a bank whose doors it happens I have never entered, 
are here. Their books are here, and these gentlemen and 
this proof will show that never in my life did I touch a dol¬ 
lar placed in the registry of the court.” 


W. E. SIMMONS AND THE CORBIN BANKING COM¬ 
PANY LOANS. 

W. E. Simmons (Stenographic Record, p. 723), after tes¬ 
tifying to his dislike and bitterness toward Judge Speer, 
antedating and continuing through his entire encumbency 
on the bench, complained of Judge Speer’s ruling against 
him on the question of usury in the case of New England 
Mortgage Security Co. vs. Gay, reported in 33 Fed., 636. 
He says that prior to the trial of that case in January, 1888, 
he had brought a great many suits in the United States 
Courts at Macon and Savannah, to foreclose mortgages 
against the borrowers on farm] lands. His clients, and the 
plaintiffs in these cases being the New England Mortgage 
Security Co. and several English and Scottish Loan Compa¬ 
nies. He says that these loan companies covered the State 
pretty well, and there were so many foreclosure suits that 
it was more convenient for him to bring all of them in the 
United States Courts than in the Superior Courts of the 
various counties. The plea of usury was set up in the case 
of New England Mortgage Security Co. vs. Gay, and from 
the report of this case, the nature and character of the loan 
business as carried on by the Corbin Banking Company in 
this State will be readily perceived. Through a printed con¬ 
tract furnished by the Corbin Banking Company to its local 
agents in Georgia, and which Gay was required to sign as 
a preliminary step in securing his loan, the Corbin Banking 



Ill 


Company and the local agent were designated and consti¬ 
tuted the agent of Gay, the borrower, presumably for the 
purpose of obtaining the loan, but in reality for the purpose 
of plausibly permitting the Corbin Banking Company to re¬ 
tain and withhold from Gay, the borrower, twenty per cent, 
of the principal of the loan when the money should be for¬ 
warded on the mortgage which Gay was required to execute 
on his farm. The principal of Gay’s loan was $8,500, se¬ 
cured by a mortgage on farm lands valued at $22,000, and 
the security was pronounced “creamy” by the Cashier of 
the Corbin Banking Company. Gay claimed that he actu¬ 
ally received only $6,443 of the proceeds of the $8,500 loan. 
Gorman, the local agent, says that Gay received $6,800, and 
that only $1,700 was withheld. There was abundant evi¬ 
dence of the close connection and identity of interest be¬ 
tween the Corbin Banking Company of New York, the loan 
agency corporation, and the New England Mortgage Se¬ 
curity Company of Boston, the plaintiff and alleged lender 
and owner of the loan. It did not appear where the Corbin 
Banking Company had ever rendered any services to Gay 
in the loan transaction, but there was much evidepce, both 
oral and written, of the active services which the numerous 
agents and employees of the Corbin Banking Company 
were continually rendering to the New England Mortgage 
Security Company in connection with this and other loans. 
Among other letters appearing in the record is the follow¬ 
ing from one Tussey, who seemed to have been an agent of 
the Corbin Banking Company located in Atlanta, Ga., and 
whose duties seemed to be to prod the local agents and the 
slow and dilatory borrower in the payment of interest: 

“Atlanta, Ga., December 18, 1884. 

O. D. Gorman, Esq., 

My Dear Sir: On my delinquent list I find the follow¬ 
ing: Schley County, No. 35144, Jacob M. Gay; Ellaville, 
and $468.44, and now I want you to go for this ‘old cus’ in a 
good shape, and see that he ‘ponies up’ at once. We can’t 
afford to have him slip up on this trifling amount in an 
$8,500 loan. If he cannot get there on a small amount like 
this, what in the Devil is he going to do next year. 

Yours truly, 


S. D. TUSSEY.^ 


112 


The undisputed facts of this case not only justified, but 
required the Judge to submit to the jury trying the case the 
question as to whether the printed form of contract which 
Gay had been required to sign constituted the Corbin Bank¬ 
ing Company his agent, was not a mere sham or a pretence 
and device to evade the usury laws of Georgia, and make 
the withholding of $1700 of Gay’s borrowed money by the 
Corbin Banking Company a plausible payment to his own 
agent for a pretended service not rendered. 

Judge Speer presented the facts of this case fully to the 
jury, and left them to say whether the transaction was 
usurious under the Georgia statute. They found for Gay, 
and that the loan was tainted with usury, and it is difficult 
to see how they could have found otherwise. Mr. Simmons, 
who was of counsel for the loan company in that case, com¬ 
plains that Judge Speer declined to recognize a decision 
which had shortly prior to the trial of this case been ren¬ 
dered by the Supreme Court of Georgia, in what is known 
as the Merck case, where apparently a commission of only 
$80 had been retained by the loan agent, and where the 
transaction as disclosed in the Merck case was held by the 
Supreme Court of Georgia not to be usurious. The Merck 
case had been decided upon a very different state of facts 
from that disclosed in the Gay case then on trial, for in¬ 
stance the commissions in the Merck case was only $80 for 
the service rendered, whereas the commission in the Gay 
case was certainly not less than $1,700, without any differ¬ 
ence as to the actual amount of service rendered. In the 
Merck case it was made to appear that the services rendered 
to the borrower justified the charge of $80. In the Gay case 
it did not appear that the Corbin Banking Company ren¬ 
dered any service to Gay, but on the contrary the interests 
of the Corbin Banking Company and the lender, the New 
England Mortgage and Security Co., were apparently iden¬ 
tical and all the services rendered by the Corbin Banking 
Company in connection with the transaction was to the 
lender. The record in this case discloses that Mr. Gorman 
the local agent of the Corbin Banking Company, who rep^ 


113 


resented only five counties in Georgia, had at the time the 
Gay case was tried placed loans on farm lands in these five 
counties for Mr. Simmons’ clients through the Corbin Bank¬ 
ing Company in the aggregate of $200,000, and that the 
commissions which had been withheld by the Corbin Bank¬ 
ing Company on these loans had amounted to $40,000, leav¬ 
ing to the borrowers out of the gross amount of these loans 
only $160,000. This, taken in connection with Mr. Sim¬ 
mons’ testimony, that he was representing through the Cor¬ 
bin Banking Company, loan companies which pretty well 
covered the State, and which at that time contained 137 
counties, will give some idea as to the enormous profits 
which the Corbin Banking Company had been making in 
these usurious transactions carried on in this State. When 
it is remembered that all of these loans carried a provision 
for the payment of 10 per cent, attorneys’ fees, secured by 
the mortgage, some idea of the immense financial interest 
which Mr. Simmons had in these numerous law suits will 
be. appreciated. It is not unnatural under such circum¬ 
stances that when he found that Judge Speer proposed to 
submit the facts in all of these foreclosure proceedings, 
where the question of usury was raised, to the jury trying 
the case, that Mr. Simmons determined, notwithstanding 
the convenience of the Federal Courts, to dismiss his cases 
in the Federal Courts and subject himself to the inconven¬ 
ience of foreclosing his mortgages and enforcing his usur¬ 
ious contracts in the State Courts. 

In accordance with his testimony this is exactly what he 
did, viz: After losing the Gay case he proceeded to dismiss 
all his cases where decrees had not already been taken and 
where pleas of usury had been filed, first dismissing those 
pending at Macon, and shortly thereafter dismissing those 
pending at Savannah. From the dockets it appears that all 
of these cases were dismissed in 1888 and not later than 
.the Spring of 1889, and the Clerk’s ledger shows that the 
amount of unearned cost returned to Mr. Simmons in the 
cases which he had filed and dismissed at Macon, amounted 
to only $226.68, all of which was returned prior to April 23, 


114 


1888, except one item of $10.70, which was returned Octo- 
ber 3, 1891, and those filed and dismissed in Savannah on y 
to $172.43, all of v^hich was returned to him at the time the 
cases were dismissed, prior to the 18th of January, 1889, 
the total amount of cost returned being $399.11. 

The Gay case was taken to the Supreme Court of the 
United States by Mr. Simmons, and the decision was af¬ 
firmed upon the ground that the jurisdictional amount in¬ 
volved did not make the case subject to review by the Su¬ 
preme Court. 145 U. S., 123. 

Mr. Simmons’ apparent effort to show that he had diffi¬ 
culty in dismissing his untried cases in the United States 
Courts, at Macon and Savannah, though highly colored, ap¬ 
parently for the purpose of exaggerating his own independ¬ 
ence and overbearing conduct toward the Court, failed to 
show any real obstacle presented by the Court to the speedy 
dismissal of his cases and the prompt return to him of his 
unearned cost by the Clerk. 

Mr. Simmons complains in another loan company case, 
viz, the New England Mortgage and Security Co. vs. Annie 
P. Tarver, where the litigation lingered along through sev¬ 
eral years. He seems to make an effort in his testimony to 
show that in this, as in the Gay case, his client, the boan 
company, was treated unfairly in Judge Speer’s Court, and 
that the Judge’s bias was in favor of Mrs. Tarver, but no 
fact is stated upon which any such criticism can be justly 
or fairly made, and the decree which he himself states was 
a consent decree finally rendered his client, apparently sur¬ 
renders all of the judgments and mortgages against Mrs. 
Tarver and gives to her $8,750 in cash. (Stenographic 
Record, p. 734.) He complains, however, that though the 
decree was consented to by counsel representing all the par¬ 
ties Judge Speer declined to sign the decree until Mrs. Tar¬ 
ver appeared and expressed her assent to the decree. The 
Committee’s attention is called to the fact that the record 
discloses that in this litigation between the loan company 
and the Tarvers there had been a traverse of a return of 
service, and it appeared that in one instance at least the 


115 


wrong Mrs. Tarver had been served. If there was to be an 
end of the litigation it is difficult to see how Judge Speer 
is to be criticised for hesitating about signing the decree at 
the instance of counsel in the absence of the most important 
party to be affected, and when that party was a married 
woman and her property rights were to be finally deter¬ 
mined by the proposed decree. Even if the Chancellor is 
not required in such cases to fully advise such a litigant 
before him, instead of being reprehensible, it would seem 
that the caution and solicitude of Judge Speer in this in¬ 
stance should be commended. 

The injunction against the writ of assistance in the Tar¬ 
ver case granted by Judge Speer in January, 1892, was 
upon which eminent counsel engaged in this case differed, 
can be said of it was that it involved a question of practice 
upon which eminent counsel engaged in this differed. 
Judge Speer's order requiring the writ to issue only upon 
the order of the Judge, after notice to all parties, seemed 
to be in the interest of fairness. While the reversal by the 
Court of Appeals was a strict technical interpretation of 
the rule of practice, at most it was only a reversible error. 

In reference to this case, the attention of the Committee, 
is specially called to the testimony of Judge W. D. Notting¬ 
ham, (Stenographic Record, p. 1002) who it appears was 
one of the attorneys for Mrs. Tarver in this litigation, 
where the other side of this loan case, from the standpoint 
of one ‘of the victims of the usury practice in Georgia by' 
Mr. Simmons' clients, is narrated, and from whose account 
it appears that in addition to the large money recovery de¬ 
scribed by Mr. Simmons in the consent decree, that Mrs. 
Tarver, as a result of this litigation, saved over six hun¬ 
dred acres of her land. 

Mr. Simmons charges (Stenographic Record, p. 746) that 
J. W. Cabaniss was Receiver in the Tarver case, and did 
very little except to take the rent notes, and that when the 
case was terminated, the costs being put by the Court on 
his client, the Receiver was paid for his services $1,000, 
which he regarded as excessive. The Committee's record 


116 


does not disclose how much land was involved in this litiga¬ 
tion, but as the original loan was stated to have been 
$35,000, and it appears that these loan companies only ad¬ 
vanced approximately one-third of the value of the security, 
it is a fair inference that the land involved in the litigation 
was of over $100,000 in value, and as Mr. Simmons com¬ 
plains that the litigation was long drawn out, the Receiver 
evidently had charge of this landed estate ^and was charged 
with the duty of renting it, looking after the tenants and 
collecting the rents for a number of years, in view of these 
facts it can hardly be contended that a compensation of 
$1,000 to the Receiver for this service was excessive. 

Mr. Simmons also complains of his experience in another 
case, that of the American Free Hold Land Mortgage Com¬ 
pany of London vs. Thomas. His complaint being de¬ 
scribed in his own language, (Stenographic Record, p. 739) 
as follows: 


“When I began to argue the case Judge Speer 
picked up his pen and went to writing and paid no 
more attention to me than if I had been a post. I 
felt very much offended and I called him down. I 
said: ‘Will you please lay down that pen until I get 
through? I treat Courts with respect and I demand 
it of you. 


If Mr. Simmons is literally describing his conduct on that 
occasion it is respectfully submitted that his manner is not 
only extremely discourteous, but would have justified the 
Court in punishing him for contempt. In fact if he states 
truthfully and accurately what occurred on that occasion 
the criticism against the Judge would seem to be that he 
neglected an opportunity to enforce due respect to the 

conduct as described by him- 
self throughout this transaction is reprehensible in the 
ig est degree and discreditable to a prominent member of 
the Georgia Bar. 

The difficulties which he attempts to describe in the same 
case which he had m getting an appeal from the decision 
of the Court and which difficulty he claims finally forced 


117 


him to go to New Orleans to obtain the appeal, as it isi 
highly colored by the account he gives the Committee, was 
apparently intended to magnify his own discourtesy and 
disrespect toward the Court rather than to state any actual 
injustice done to him or his client. He succeeded in getting 
his appeal and he says reversed Judge Speer’s decision in 
the Thomas case. If so no harm or injustice was done to 
his client, and when one considers the boastful spirit with 
which he now, after twenty years, describes his gross mis¬ 
behavior and discourtesy toward the Court, it is difficult to 
conceive how he could have expected the Judge under the 
circumstances to have dealt with him as a practicing attor¬ 
ney otherwise than in the most formal manner. 


COMPLAINT OF W. H. BURWELL. 

The grievances of this gentleman is (Stenographic Record, 
p. 975), that on one occasion '‘by agreement of counsel,” he 
went to Toxaway, N. C., to appear before Judge Speer; 
that the hotel was crowded and the rates exhorbitant; that 
he was kept at Toxaway ten days because Judge Speer 
would only hold court about two hours a day. It appears 
that this was in August, 1906. The trial of Green and 
Gaynor for the embezzlement of over two millions of dol¬ 
lars had lasted from January until May. As a consequence 
the civil dockets in the several divisions had become con¬ 
gested, and notwithstanding the fact that at that season of 
the year Judge Speer always suffers severely from hay fever, 
he had agreed to hear a number of equity and admiralty 
cases during his vacation, the lawyers interested being ad¬ 
vised that he would sit for only a short time each day, as 
his health required this. That under the circumstances the 
Judge was entitled to a vacation seems clear. It was optional 
with Mr. Burwell and other counsel whether or not they 
should appear at that time and place. They agreed to appear. 
The fact that during his vacation and painful indisposition 



118 


the Judge would attempt to hear important causes at the 
request and agreement of counsel, either at Toxaway, High¬ 
lands, or Mount Airy, is surely not to his discredit. ^ So im¬ 
portant to the administration of justice has been this habit 
of Judge Speer, that for many years successive Attorneys- 
General have authorized payment for the traveling expenses 
and maintenance of the court stenographer so that officer 
might attend the Judge and report the hearings. 

Mr. Burwell was asked by the Chairman if he knew any¬ 
thing that would tend to show favoritism on the part of 
Judge Speer. He replied “No.’’ He, however, proceeded to 
narrate the following: 

In the Mandel bankruptcy case a composition had been 
agreed upon, and Mr. Chas. Cork, stenographer for the 
Referee at Macon had put in his bill for $90.00 for taking 
down the testimony. This was presented to the Referee. 
On objections before that officer the amount was reduced to 
$45.00, but two days later the Referee allowed Mr. Cork the 
full $90.00, saying that Judge, Speer had ordered it. (Steno¬ 
graphic Record, p. 980.) This Referee is now dead. The 
record will disclose the facts following: 

An involuntary petition was filed against B. Mandel & 
Son, and an answer filed by them. An order of reference 
was made to Alexander Proudfit, as Special Master, to take 
evidence and report on the issues. The report of the Special 
Master was filed on January 20th, 1906. The papers relat¬ 
ing to the compensation of the stenographer have been 
filed with the Committee and are not accessible, but the 
controversy probably arose out of the contention of Mr. Cork 
that in hearings before a Special Master, in which capacity 
Mr. Proudfit was acting here, the stenographer is entitled 
to the usual fee of 10c per folio for taking down the evi¬ 
dence and 10c per folio for writing it out. This is the rule 
before a Special Master or any other Judicial officer. This 
the court doubtless regarded as controlling. This would 
account for the sum of $90.00 allowed. Had, however, the 
Master been acting in his ordinary capacity as Referee, the 


119 


provision of the Bankruptcy law allowing 10c per folio for 
taking down and writing out would have applied. 


The complaint of Mr. Burwell (Stenographic Record, p. 
982) that in the bankruptcy case of Cawthorne, Judge 
Speer refused to appoint Arthur Hutchinson, the Sheriff 
of Hancock County, as receiver, is ascribable to the fact 
that Hutchinson was not only a defendant to a rule brought 
against him in that case, that an injunction was pend¬ 
ing against him, but there were other reasons which made 
it not advisable that he should be appointed. Pope S. Hill, 
a member of the Macon Bar, received the appointment. 
That his compensation was proper is shown by the final 
order. (Stenographic Record, p. 988.) This was entered 
on December 5th, 1900. It recites that the bankruptcy 
estate amounted to $1,232.16; that counsel had fixed their 
fees by agreement, but that Judge Speer disapproved the 
agreement and reduced the fee of the witness, W. H. Bur- 
well, as agreed upon, from $250.00 to $175.00, and reduced 
the fee of the attorney for the bankrupt from $125.00 to 
$87.50. It was the effort of the court to be economical 
always, with the most gratifying comparative results as 
will appear from the annual reports of the Attorneys-Gen- 
eral. The fee allowed Pope S. Hill, Receiver, was only 
about Si% of the value of the estate,—this was before the 
Act of Congress fixing the maximum of the fees of receivers 
in bankruptcy cases, and reference to the record of the case 
will disclose that the appointment of this gentleman and 
his compensation were amply justified. 


GEORGE C. HALL CASE. 

Akerman and Smith. 

Mr. Akerman was asked to recall instances where Judge 
Speer had shown him disdain or contempt, or treated him 




120 


improperly, and referred to the case of the United States 
vs. Geo. C. Hall. 

Mr. Akerman replies (Stenographic Record, p. 1091) : 
"‘His manner throughout the entire case was very abusive 
and insulting to me, I thought. I may have been mistaken, 
and it may have been super-sensitiveness on my part. The 
case was being conducted principally by Mr. John R. L. 
Smith, as Special Counsel.” 

Mr. Akerman says (Stenographic Record, p. 1092) : 
‘‘The principal thing I noticed was he would interrupt my 
argument. I did not examine the witnesses myself. Mr. 
Smith did that. I remember particularly I went to show a 
signature across the back of a check to the jury through a 
magnifying glass, and he came down with his gavel ‘Stop, 
Mr. Akerman, stop! that is manifestly unfair to the defend¬ 
ant.' I turned to him and I told him that I thought it was 
entirely proper, and I knew no rule against it. He said I 
had not introduced it in evidence. I told him I was not using 
it in evidence, but merely as an aid to the jury to see the 
signature under a magnifying glass.” 

Court adjourned and Mr. Akerman said he submitted 
several authorities, but that the Judge held that the glass 
could not be used. The case was a perjury case. Later 
another case, for concealing the assets of the bankrupt on 
the same evidence, was tried before Judge Grubb, and Hall 
was convicted. 

When asked about the Judge's manner towards him 
(Stenographic Record, p. 1093) Mr. Akerman said: “It is 
very hard to describe manner; I took it he was trying to 
discountenance me before the jury, cross, irritable, inter¬ 
rupting me, telling me I couldn't do this, that and the other 
thing, in his usual suave manner.” 

Mr. John R. L. Smith was asked (Stenographic Record, 
p. 102) to describe tho attitude and conduct of Judge Speer 
toward Mr. Akerman in the Hall case. Mr. Smith replied: 

“Well, it was a disposition to sneer at everything that 
the District Attorney had to say, and to express disappro¬ 
bation of all of his motions and to express a doubt and dis- 


121 


trust of the truth of all of his statements or suggestions 
made, agreements proposed, and matters of that kind. As 
I say, it is difficult to express or describe. I do not remem¬ 
ber the details of anything in particular that was said. I 
do remember one incident, but I do not remember the state¬ 
ment or expression used in reference to that; that was with 
reference to the use of the magnifying glass before the 
jury.’^ 

Mr. Smith was asked (Stenographic Record, p. 104) if 
the same point with regard to the use of the magnifying 
glass was raised before Judge Grubb on the trial of the 
other Hall case, and he replied “I am not sure about that, I 
do not recall.” 

Mr. Smith was asked whether he knew of any personal 
estrangement between Mr. Akerman and Judge Speer about 
that time. Mr. Smith replied (Stenographic Record, 
p. 105) : 

'‘Mr. Akerman’s statement to me, that is all I have—was, 
that the Judge had turned democratic and wanted to get 
him a democrat for District Attorney, and had made up 
his mind for that purpose to run him out of the court, and 
was about to succeed in doing it, that he had not convicted 
anybody—well I do not remember, but in several months, he 
named a number of months.” 

Mr. Smith stated (Stenographic Record, p. 106) : 

“The Judge’s attitude toward me was not particularly 
attractive, but the impression was that it was entirely on 
the ‘Old Dog Tray’ principle.” 

The transcript of evidence on the first trial of Hall shows 
that Sam B. Hunter, the Notary Public, could not swear 
positively that an oath had been administered to George C. 
Hall when he signed his schedules in bankruptcy, and of 
course if no oath was administered Hall could not have 
been convicted of perjury. 

The Committee will doubtless recognize that to convict on 
the indictment for perjury tried by Judge Speer much 
stronger proof was requisite than to convict on the indict¬ 
ment tried by Judge Grubb for concealing the assets of a 
bankrupt, yet, the final outcome of this most costly prose- 


122 


cution in which the District Attorney Akerman was re¬ 
enforced by the Special Assistant Smith was a verdict of 
“not guilty” of perjury, a verdict of “guilty” with recom¬ 
mendation to extreme mercy for concealing assets, the 
jurors using capitals in writing this recommendation. So 
trivial was the case that the sentence save thirteen day's 
imprisonment was suspended by Judge Grubb. 

The record of the trial will disclose that in the perjury 
case, the principal witness, a married man, had testified with¬ 
out shame, that on the day to which his testimony related 
he had in the morning betaken himself successively to sev¬ 
eral houses of ill fame in Macon. The Judge had disgust 
and doubt of this witness. It is possible this accounted for 
the manner about which Akerman “may have been mis¬ 
taken” and “super-sensitive” and which Smith found “im¬ 
possible to describe.” Smith’s statements that Akerman told 
him that the Judge had turned democratic and wanted to 
get him a democrat for a District Atorney is hearsay and 
incompetent, but its sinister purpose is obvious. The truth 
is, Akerman, while Assistant District Attorney, had 
been appointed Assistant Attorney-General. This would 
take him away from the District. For ten years the 
court had suffered from this evil, from such absenteeism 
on the part of the District Attorney, because District At¬ 
torney Erwin, during all that time, had been employed by 
the Department in the Greene and Gaynor matters. Finally 
the Judge wrote to Washington urging the appointment of 
a District Attorney who could remain in the District and 
attend to his duties. The supply of available legal talent 
among republicans in the district was not super-abundant, 
and the Judge did not hesitate to commend to the President 
either of six honorable democratic lawyers of that type which 
he felt would enforce the law. When, however, the Attor¬ 
ney-General wrote especially to ask if he would not com¬ 
mend Akerman also. Judge Speer wrote at once that he 
would do so with pleasure. It is due him to state that he 
was not then informed of Akerman’s secret enmity and 
was not fully satisfied of his infidelity to the trust he vet 
holds. 


123 


It is a matter of record that there are about four hundred 
members of the Bar of the United States Court who reside and 
practice therein in the Western Division of the Southern 
District of Georgia. There are twenty-two of the finest 
counties of the State in that Division. They are the coun¬ 
ties of Baldwin, Bibb, Butts, Crawford, Dodge, Dooly, Han¬ 
cock, Houston, Jasper, Jones, Laurens, Macon, Monroe, 
Pike, Pulaski, Putnam, Sumter, Telfair, Twiggs, Upson, 
Wilcox and Wilkinson. 

Here also are the cities and large towns of Milledgeville, 
Jackson, Eastman, Vienna, Sparta, Perry, Fort Valley, 
Marshallville, Montezuma, Oglethorpe, Monticello, Dublin, 
Forsyth, Barnesville, Zebulon, Hawkinsville, Eatonton, 
Americas, McRae, Jeffersonville, Thomaston, Irwinton and 
Abbeville. There, too, is Macon, with more than a hundred 
members of the Bar and more than fifty thousand people. 
The division itself as appears from the last census possesses 
a population of more than four hundred and twenty-six 
thousand. On the 18th of this month Judge Speer will 
have performed the difficult, delicate and often dangerous 
duties of a United States Judge for twenty-nine years. For 
nearly all of that time he acted both as Circuit and District 
Judge. When he was appointed, the Chairman of the sub¬ 
committee was a lad of thirteen, and the other members 
scarcely older. To the lot of no Judge for nearly the life of a 
generation has it fallen the duty to try more weighty causes, 
civil and criminal, where the fiercest passions, often sec¬ 
tional, sometimes political, were made manifest. And yet 
with all these arduous labors in all that territory, and in all 
that time, with all the energy of a mighty executive depart¬ 
ment exerted for more than nine months, only three attor¬ 
neys have been found to testify that Judge Speer had ever 
shown discourtesy to counsel. These are Akerman, Smith 
and George S. Jones. Mr. Wimberly testified with warmth 
but his criticism was confined to the Jamison case, other¬ 
wise he said the Judge had treated him with great kindness 
and accorded him every right. The aged and impulsive 
Preston told the Committee of a trial twenty-one years ago 


124 


where a postmaster had issued money orders for more than 
$2,000.00 in the name of his office boy and had pocketed the 
proceeds, and had sold stamps for a large amount on his 
own account and was accordingly convicted. But there 
Preston charged no discourtesy and declared that such was 
his own conduct that the Judge ought to have put him in 
jail. 

Besides two of these witnesses have toward the Judge all 
the hatred of the ingrate. 

In the testimony of Jones, two incidents are mentioned. 
One was intended fo be a kindly admonition, made at the 
Judge’s home, to settle a case which Jones afterwards set¬ 
tled on the advice of the Circuit Court of Appeals. In the 
other his complainant was reviewed by the Circuit Court of 
Appeals on full exceptions and argument, and the action of 
Judge Speer by the unanimous court affirmed. 

The Committee will observe that both Akerman and 
Smith refer to but one fact and that was when the Judge 
stopped Akerman in the Hall trial from handing a magni¬ 
fying glass to the jury to scrutinize an indorsement alleged 
to have been made by the accused. As to this glass no wit¬ 
ness was examined. As to its use, the power of its lens, its 
accuracy, no expert was offered. There was no opportunity 
to cross-examine. It was produced and handed to the jury 
for the first time during Akerman’s argument. This the 
Judge thought and still thinks unfair to the accused. It did 
not appear that Akerman himself was an expert in the use 
of the glass. Facility in the use of the microscope or mag¬ 
nifying glass seems proof essential to show the qualification 
of an expert. 

Chamberlayne on the Modern Law of Evidence, 
Paragraph 2217. 

State vs. DeGraff, 113 N. C., 688. 

18 S. E. Rep., 567. 

The holding if erroneous was error only. 

Besides, both of these witnesses have unhesitatingly at¬ 
tributed to the Judge an unbalanced and impaired mind, 


125 


and yet this imputation was refuted conclusively by Dr. 
Little, the only physician examined, who had*often attended 
him,—by Wimberly, Preston, and W. D. Nottingham at 
Macon, and by the, array of corporation counsel and 
local political bosses at Savannah, Lawton, Adams, Osborne, 
Lawrence, Meldrim, Golding, and by Mackall, the President 
of the Trust Company there. All of these witnesses, it is 
true, decried his capacity as a Judge, but accorded him other 
mental powers of a high order. Even though his judicial 
powers may be defective enough to make him a “misfit,’’ as 
testified by the malignant Lawrence, they have been the reli¬ 
ance of his country in one of its most important districts in 
many a cause celebre for many a year. In most of these, the 
powerful clients of these gentlemen lost, and his country pre¬ 
vailed. Singularly enough, too, the work of the “judicial mis¬ 
fit” in such cases was after fierce review often affirmed and 
rarely reversed by the Judges of those great appellate courts 
who since they were appointed by the President, and con¬ 
firmed by the Senate the Committee will doubtless assume 
are not judicial misfits. Long ago it was determined in the 
same constitutional way, that Judge Speer himself was not a 
judicial misfit. 


CRITICISM BY MR. W. A. HARRIS. 

The Chairman stated to Mr. Harris: “It is claimed that 
Judge Speer is arbitrary. Do you know of any facts of your 
own knowledge that would sustain this charge?” and called 
his attention to the case of Matthew vs. Brotherhood of 
Locomotive Firemen and Enginemen. 

Mr. Harris replied (Stenographic Record, pp. 1251-2) : 
“Judge Speer declined to sustain the demurrer filed by 
counsel for the plaintiff on the ground that it had not the 
certificate of counsel, I believe it was, although it was a case 
at law. I think the ruling was proper. The reason for the 
ruling was not proper. It was not an equity case and did 
not require the certificate.” 



126 


It will be observed that Mr. Harris is not positive as to 
this ground of arbitrary conduct. He states merely I be¬ 
lieve it was.” 

Mr. John R. L. Smith, who represented the plaintiff, 
against whom the ruling was made, was sworn as a witness 
(Stenographic Record, p. 109). This witness cannot be 
said to be prejudiced in favor of the judge. He, however, 
does not corroborate Mr. Harris. This will appear from the 
following excerpt from his testimony (Stenographic Rec¬ 
ord, p. 110) : 

^The Chairman: How about a demurrer? 

^‘Mr. Smith. I do not recall about any demurrer 
in the case. 

“The Chairman: Did he (Judge Speer) refuse 
to entertain the plaintiff’s demurrer to defendant’s 
answer because the demurrer was not verified as re¬ 
quired by the equity rule? 

“Mr. Smith: I do not recall that. 

“The Chairman: You cannot remember that? 

“Mr. Smith: No, sir.” 

Now reference to the record of this case and to the docket 
of the Clerk will show that there is on record or of file n^o 
demurrer to the defendant’s answer described by Mr. Har¬ 
ris, and no record of an entry of the filing of any such de¬ 
murrer, and no order of the court overruling such demurrer. 
It was the invariable practice of the court to sign all such 
orders. 

Now a demurrer is generally heard in limine, and 
while this case was in law and not in equity and there 
was no requirement that the pleadings be verified, 
both the plaintiff’s petition and the defendant’s answer, as 
appears from the record, were verified under oath as in 
equity cases. While Mr. Harris seems to be mistaken in his 
recollection, if the Judge really gave the erroneous reason 
assigned for a correct ruling, the error may perhaps be 
traced to the superfluous and reiterated jurats. 


Arbitrary conduct is assigned by Mr. Harris in another 
case. He testifies (Stenographic Record, p. 1253) : “In my 



127 


practice I have got only one case to which I can refer, in) 
which I thought the Judge was arbitrary and unfair, and 
that was the case of Johnson vs. The Southern Railway Co., 
in which I represented the Southern Railroad (Mr. Harris 
continues to represent that client). In that case Johnson 
was a bailiff of the court and was represented by Akerman 
& Akerman, Mr. Johnson was injured in the same wreck 
in which Mr. Spencer, the President of the road was 
killed.” 

Mr. Harris further states that Johnson alleged that his 
neck was injured and that he had a severe and painful 
hernia. Mr. Morgan was a witness for the plaintiff, and 
Mr. Harris states that Judge Speer asked him if he had 
noticed Johnson before the injury and whether or not he 
was an erect man, and whether he had not noticed him after 
the injury, and did he not carry his head on one side. While 
Mr. Harris at first testified ‘'of course the clerk testified 
that it was true,” on being recalled (Stenographic Record, 
p. 1307) he also testified “that the facts to which Mr. Mor¬ 
gan testified were absolutely true * * * what I crit¬ 

icise is the option of the Judge in asking the questions under 
the circumstances.” 

It is respectfully submitted that on the trial it is proper 
for the Judge in his discretion to ask questions in order to 
elicit truth. He may even ask leading questions if he thinks 
proper. 


Wigmore on Evidence, Volume 1, Section 784. 

Mr. Harris further complains (Stenographic Record, pp. 
1254-5) that “I asked Mr. Johnson in that case if he had 
not stated on various occasions before the injury, to people 
in Mount Airy from whence he came, that he had had this 
hernia prior to the time of the injury, and we also asked 
him if, after the injury, he did not play baseball on the 
Mount Airy team. We called his attention specifically to 
each of the persons in Mount Airy to whom we had put the 
question, asking him if he had not made statements to them 


128 


as to the hernia. He, in each instance, answered that he 
had not. Thereupon when the plaintiff closed we called all 
of these residents of Mount Airy to the stand, and they tes¬ 
tified that Johnson made those statements. The court then 
adjourned until next morning, and the next morning one 
of the jurors was not in the box. Judge Speer stated, when 
he came upon the bench, that he had excused Mr. Geo. R. 
Turpin from the jury. He then stated that he would go on 
with eleven. The District Attorney, Mr. Akerman (John¬ 
son’s attorney), objected. I then asked that we postpone 
the case until the next day and see if Mr. Turpin was not 
well enough to come. The Judge said he was not disposed 
to shov/ any favor to the defendant as we had not let Ml“. 
Johnson know that these witnesses were here. I then said 
that we had called his attention to the fact, and that it would 
not have been any surprise to a man who was ready for 
trial. The Judge declined to do that and declared a mis¬ 
trial, and the next morning I went to see Mr. Turpin and 
he was at his desk.” While the stenographer’s record does 
not so state, Mr. Harris testified that when he saw Turpin 
the latter said “I was sick.” 

Mr. Harris stated (Stenographic Record, p. 1259) that 
'•under the Georgia practice the case could not have pro¬ 
ceeded with eleven jurors without the consent of the plain¬ 
tiff, and that the plaintiff’s attorney would not consent. 

Now it does not appear from the evidence what facts 
induced the Judge to decline to recess the case, perhaps 
from day to day, until the sick juror might have returned. 
It was in the discretion of the court and under the circum¬ 
stances the discretion was not abused. This is additionally 
shown by the fact that the defendant afterwards settled 
the claim of the plaintiff which it was then attempting to 
defeat. This, however, Mr. Harris testifies was done over 
his objection. 

Johnson, it is true, was an officer of the court and had 
been injured on his return journey with another officer, 
where he had guarded a prisoner or prisoners to prisons to 
which they had been sentenced. The other officer, Henry 



129 


G. Tucker, was injured at the same time, and Mr. Harris^ 
client also settled with him. 

It does not appear that as to either incident did Mr. Har¬ 
ris make complaint against the Judge. 


E. P. DAVIS, WARRENTON, GA. 

Mr. Davis stated (Stenographic Record, p. 1208) that 
he was attorney for Max Stein, charged with concealing 
property from his trustee in bankruptcy; that he attended 
the court in Augusta while the matter was being presented 
to the Grand Jury, and that one day some of the witnesses 
casually remarked that he jury had failed to return a bill 
against Stein; that he went to the Clerk and was informed 
by that officer that he understood the Grand Jury had voted 
‘‘No Bill,” but their action had not been returned to the 
court; that the witnesses for the Government, Max Stein, 
and himself, all went home that afternoon; and when he got 
home he was informed that the Grand Jury had re-con- 
sidered the case and returned a bill, and in the meantime 
Stein had gone to Gibson, a neighboring town. Mr. Davis 
further states that when the case was called in Augusta, ' 
Judge Speer “asked me if I knew that Max Stein was going 
away. I told him I did. He asked me if I told him to^ get 
away. I told him I did. As a matter of fact I did not tell 
him to get away, but I construed the matter as strongly as 
possible against myself. I told the Judge that I had told 
him to go away. Well that is about all there is of it. The 
balance of it was paying a fine. He fined me $50.00.'’' 
(Stenographic Record, pp. 1208-9-10-11.) 

Mr. Davis further stated that he did not think that the 
bond of Max Stein was forfeited, and says that later the 
case against Stein was nol prossed. 

The order of Judge Speer setting out in detail the reasons 
why the fine was imposed appears on page 1218 of the steno¬ 
graphic record. 

This fine was imposed by the Judge to arrest a well 



130 


known and injurious practice. Stein was under an appear¬ 
ance bond to attend court. He was charged with the offense 
stated. The question of his indictment was pending before 
the Grand Jury. He was in fact indicted. When on the 
next day, the Government ready, its witnesses in attend¬ 
ance, the person indicted was called, he was absent, and his 
attorney stated in open court that he had advised him to 
‘‘go away,’" or “get away.^^ This advice was deemed improper. 
It would delay the trial, at least double its expense, probably 
necessitate the forfeiture of the bond, and subsequent pro¬ 
ceedings, a second arrest, new subpoenas for all the Govern¬ 
ment’s witnesses, with the contingency that one or more 
might die or depart the jurisdiction, and the ultimate fail¬ 
ure of justice. Beside, attorneys should refrain from all 
interference with the action of a Grand Jury and await the 
formal return of its action to the court. 

For the court to condone or ignore such conduct as Mr. 
Davis admits, would be to enable a person to obtain a con¬ 
tinuance until the next term at any time, and most 
gravely to embarrass the proper dispatch of criminal trials. 

The fine was imposed. The mischief to the enforcement of 
the law was avoided and no similar incident has since 
occurred. 

Mr. Davis also testified (Stenographic Record, p. 1215) : 
“It is difficult to get the Judge to answer a letter, and I 
have had some experience in trying to get him to sign 
orders.” In the case of Murray & Smith, a composition had 
been effected and he (Davis) requested the Clerk to present 
the consent papers to the Judge, who was then at Murphey, 
or Highlands, N. C., and that he (Davis) wrote Judge Speer 
two or three letters which were not answered, but when 
Judge Speer returned to Mount Airy, Mr. Davis went to 
that point and had no difficulty in getting the orders signed. 
It does not appear whether the Clerk at Augusta sent the 
papers to Judge Speer. 

The statement by this witness that it is difficult to get 
the Judge to answer a letter is indefinite and is also wholly 
mistaken, as the files of his correspondence will show. 


131 


The complaint that the Judge would not sign an order 
approving a composition at Highlands, N. C., may be ex¬ 
plained by paragraph 12, sub-section (c) of the Bankruptcy 
Act of 1898. This provides: 

'‘A date and place, with reference to the conven¬ 
ience of the parties in interest, shall be fixed for the 
hearing upon such application for confirmation of 
a composition, and such objections as may be made 
to its confirmation.” 

At the time the courts were in vacation. Judge Speer 
was at Highlands, a point of inconvenient accessibility in 
the mountains of North Carolina. He was not even in the 
Fifth Circuit where the application was pending. It fol¬ 
lows that a hearing there would have been wholly incon¬ 
venient to the parties at interest, and unless there was con¬ 
sent, probably in violation of law. 

The witness adds (Stenographic Record, p. 1223) : ‘T 
have no especial complaint about it.” 


RIGDILL-ELLIS COMPLAINT. 

These gentlemen were two out of six members of the 
Tifton Bar whom the Referee had formally reported were 
in contempt of court. Four, it seems, had no complaint. It 
was in the bankruptcy case of the Farmer's Supply Com¬ 
pany, pending before Honorable Clayton Jones, Referee in 
Bankruptcy. From his certificate duly filed in the District 
Court, it appears that a dividend of 23% had been improp¬ 
erly apportioned among creditors whose claims amounted to 
$46,182.22. He further certified that at the time this divi¬ 
dend was made there were on file other claims aggregat¬ 
ing $11,743.43. The validity of these had been contested 
by the attorneys making the dividend sheet,—the Referee 
had held them valid, but by the action of these attorneys 
they were excluded altogether from participation in the fund 
thus distributed. These creditors were equally entitled 
with the creditors paid, but there remained in the hands of 



132 


the trustee only $609.76, wholly inadequate to pay them 
their pro rata share of the dividend. The Referee certifies 
that instead of a dividend of 23% only 18% should have been 
declared, and further that the wrong was done by Geo. E. 
Simpson, Robley D. Smith and J. B. Murrow, all attorneys 
of record, while the Referee was busily engaged in the trial 
of a case in the Superior Court of Dougherty County. It 
was upon the representation and express assurance of these 
attorneys that their calculations were correct that the 
Referee declared the dividend of 23% and countersigned 
the vouchers. On verifying the figures he discovered the 
claims ($11,743.43) allowed over the objections made, had 
been thrown aside and not permitted to share in the equal 
distribution. He further certifies that on three occasions, 
viz.: on the 6th day of February, 1911, on the 25th day of 
March, and on the 22nd day of June, of the same year, 
orders were passed by him directing the trustee to recall a 
sufficient portion of the dividend of 23% thus erroneously 
declared to enable the Referee to declare a dividend of 18% 
to all the creditors. This, however, was not done. These 
orders failing, on the 30th of December, 1911, the Referee 
himself granted a rule nisi directed to all the attorneys men¬ 
tioned requiring them to show cause why there should not 
be refunded a sum sufficient to carry into effect the inten¬ 
tion of the bankruptcy law so that the Referee might declare 
another dividend and give the excluded creditors equality. 
This rule of the Referee also directed the attorneys to show 
cause why the above facts should not be certified to the 
Judge of the District Court for his suitable action in the 
premises. It also appeared that Geo. E. Simpson, J. B. 
Murrow, Robley D. Smith, L. P. Skeen, R. C. Ellis, J. S.. 
Rigdill, and Judge R. Eve, Trustee, all of Tifton, Ga., 
Hardeman, Jones, Callaway and Johnston, of Macon, Ga., 
and Geo. H. Boynton, of Atlanta, Ga., the attorneys who 
had received the excessive dividend, were duly served by 
the Marshal. On Friday, the 12th of January, 1912, 
answers were filed before the Referee by certain of these 
attorneys,—the Referee had a hearing, and on the 13th of 


133 


March, 1912, granted an order reciting the facts aforesaid, 
and requiring the respondents to show cause why such 
facts should not be certified to the Judge of the District 
Court for whatever direction and disposition might appear 
proper. Further the Referee certified that no such cause 
was shown and he certified to the court as follows: 

“I therefore find that Geo. E. Simpson, J. B. Mur- 
row, Robley D. Smith, L. P. Skeen, R. C. Ellis, and 
J. S. Rigdill, who have been served in person with 
copies of the above stated orders, and to whom were 
exhibited the original of these orders, are in con¬ 
tempt of court, and, therefore, recommend that they 
be punished for contempt and committed to prison 
until they shall have paid to the Trustee 5% of the 
proven claims which amounts were paid to them 
for their clients, and are evidenced by a copy of the 
dividend sheet showing the amounts to be refunded 
by each creditor hereto attached and made a part of 
this report.” 

This certificate has been furnished to the Committee. 

On April 3, 1912, at Albany, in open court, the atten¬ 
tion of Judge Speer was called to this certificate of the 
Referee by Mr. I. J. Hofmayer, an attorney of the Albany 
Bar, who represented the Referee in this matter. (Steno¬ 
graphic Record, p. 812.) 

On this statement of Mr. Hofmayer in behalf of the 
Referee, Judge Speer, it is alleged, made the verbal state¬ 
ment from the bench in directing the issuances of the rules 
nisi which has apparently given offense to Messrs. Rigdill 
and Ellis. This alleged offense is set out in the colloquy fol¬ 
lowing : 


'The Chairman: Mr. Ellis, as I understand your 
complaint is not that you were arrested, but that the 
Judge announced from the bench and ordered your 
arrest and directed the Marshal to go to your home 
and arrest you? 

“Mr. Ellis: That is it. 

“The Chairman: And that after you had filed 
the very answer on which you were finally dismissed? 

“Mr. Ellis: Yes, sir. 


134 


“The Chairman: Notwithstanding that fact he 
announced it from the bench and directed the Mar¬ 
shal to arrest you and the others. You do not com¬ 
plain that you were arrested, but you complain of 
the publicity that was given by the Judge? 

“Mr. Ellis: That is it.” 

It is respectfully submitted to the honorable Committee 
that it is quite unsafe to rely for the ascertainment of judi¬ 
cial action upon the statements of resentful gentlemen 
against whom a rule nisi was regularly issued on report of 
the Referee responsible. The action of a court is known 
by its records, and the record discloses that on April 5, 1912, 
rules nisi were issued by the court and were directed to be 
served personally on the attorneys by the Marshal or his 
deputies. These were based on the judgment and certificate 
of the Referee. Now to issue a rule nisi is only to open the 
door of the court. No attachments were issued, no order of 
arrest signed. Indeed, Messrs. Rigdill and Ellis both tes¬ 
tified that they were not arrested, that no attachment was 
issued against them,—they complain that the directions of 
the Judge given from the bench as to how the rules nisi 
should be drawn and served got into the newspapers, and 
Mr. Ellis testified: 

“A trial through the newspapers is more damaging than 
one before the court often.” 

The Judge, however, is in no sense responsible for the 
activity or enterprise of the newspaper reporters, or for the 
facts certified by the Referee. The Judge intended no 
offense and gave none, save to the super-sensitive, or 
inimical. 

The Referee’s order to refund had been disobeyed. He 
had recommended the imprisonment of these gentlemen. 
The Bankruptcy Act, section 41 (a) provides “A person 
shall not in proceedings before a Referee (1) disobey or 
resist any lawful order” and sub-section (b) provides: 

“The Referee shall certify the facts to the Judge, 
if any person shall do any of the things forbidden 
in this section. The Judge shall thereupon, in a 


135 


summary way hear the evidence as to the acts com¬ 
plained of, and if it is such as to warrant him in so 
doing, punish such person in the same manner and 
to the same extent as for a contempt committed be¬ 
fore the court of Bankruptcy, or commit such per¬ 
son upon the same condition as if the doing of the 
forbidden act had occurred with reference to the 
process of, or in the presence of the court.” 

The order of the Referee requiring these gentlemen to 
refund 5% of the money paid to them could only be changed 
on a petition for review, and no such petition was filed. It 
was therefore final. 

Had the Judge desired to be arbitrary or despotic, he 
could then have gone forward “in a summary way” on no 
other pleadings than those furnished by the judgment of 
the Referee and his certificate reciting the facts. 

Such, however, was not the action of the Judge, and was 
not the established practice in this District. 

In Re. Jesse McCormick, opinion filed May 11, 1907, the 
Referee made a similar certificate. There it was contended 
that the court should have acted on the evidence before the 
Referee and on his recommendation. 

There Judge Speer held: 

“The idea that this court has the authority, upon 
the return of the Referee, in the absence of a defense 
by the defendant, to order him into imprisonment, 
because he has failed to pay over a sum which the 
Referee directed him to pay, seems to be abhorrent 
to the fundamental principles of due process of law, 
and the liberty which we have inherited as part of 
our system * * * The court will decline to hear 

the proceedings for contempt against this defendant, 
except upon pleadings filed in this court conformably 
to the general law of contempt, to be served upon 
him,—pleadings giving him the opportunity to ap¬ 
pear and make his defense, and be confronted with 
the evidence and the witnesses against him.” 

This ruling was taken to the Circuit Court of Appeals in 
McNeil, Trustee, vs. McCormick, 182 Federal 808, and was 
there affirmed. 


136 


It follows, therefore, that the verbal direction to counsel 
who represented the Referee to carefully prepare rules nisi 
was in accordance with the established practice of the court, 
and was far more considerate towards these attorneys than 
' might have been permitted by the section of the bankruptcy 
law above quoted. 

In the colloquy between Mr. Chairman Webb, and the 
witness Ellis (Stenographic Record, pp. 866-7) reference 
is made to the alleged remarks of the Judge ‘'After the answer 
was filed on which the witness was finally dismissed.'' But, 
when the alleged remarks were made, the attorneys had 
filed no answer at all before the District Court. Indeed, 
by that court no rules had been issued. The remarks which 
apparently afforded the witnesses grievance were made in 
directing the issuance of the rules, and notwithstanding the 
drastic recommendation of the Referee and the apparent 
disrespect to his findings by the attorneys, the action of 
the court was moderate. It is plain, therefore, that since, 
up to that time, the District Judge had taken no action, 
there was nothing pending which the witness could have 
answered. The only answer he and the others had made 
was solely before the Referee. By that court it had been 
pronounced insufficient, and the grounds of defense had 
in no way been brought to the attention of the District 
Judge. This was done for the first time at the hearing of 
the rules nisi issued by the District Court when, notwith¬ 
standing the judgment of the Referee, as soon as two of the 
answers of the respondents were read, the Judge stopped 
the hearing and dismissed the rule. 

The witness, Ellis, seems equally inaccurate in his state¬ 
ment that the J udge attempted to place the whole burden 
of refunding on one creditor, W. W. Timmons. This error 
may be easily seen. 

Ellis in his testimony complains that after Judge Speer 
had dismissed the rules against the attorneys and stated 
that the creditors who received the excessive payment should 
refund the amount necessary to pay the correct dividend, 
remarked: “Every man should receive justice in his 


137 


court, and every man should be treated alike” Then 
his attention was, called to the fact that W. W. Timmons, 
one of the creditors in court, had been assessed by the 
Referee with $800.00, and that that sum would be sufficient 
to pay the creditors another dividend, that Judge Speer, 
then remarked “Well, if Mr. Timmons is in court and pays 
that back it will settle it.” He complains further that after 
Judge Speer had stated that he was going to do justice to 
all that he was going to let one man shoulder the burden 
of all. 

Now, by reference to the order of the court (Stenographic 
Record, p. 863), it will be seen it is recited therein, that 
practically all of the creditors had paid back 5% of the 
amount of their proven claims, except W. W. Timmons. 
This creditor was ordered within ten days to pay the Trus¬ 
tee $793.60, which had been paid to him by the error of the 
three attorneys making the dividend sheet, and for the pur¬ 
pose of strict impartiality, it was ordered that the case be 
referred to another Referee, to-wit, Jas. F. McCrackin, 
Esq., with direction to investigate the entire case, to en¬ 
deavor to collect all amounts due by every one, and to de¬ 
termine what further dividend, if any, can be declared. So 
far from saddling the entire burden on Timmons the order 
expressly provides that the amount he was directed to pay 
in, should not be used, unless the Referee determined that 
it was necessary and proper. From the order signed by 
the Judge and not from the recollection of prejudiced and 
partisan attorneys should the action of the court be judged. 

There is, then, literally no excuse for resentment by 
any one. 

It otherwise appears from the evidence of Mr. Rigdill 
that he is offended with Judge Speer because on another 
occasion (Stenographic Record, pp. 820-1), the court sus¬ 
tained a demurrer on the argument of an attorney asso¬ 
ciated with Rigdill, without hearing Rigdill himself. Rig- 
dill testified: 

“I got up when the case was called and announced 
to the court that I represented the county of Tift, 


138 


giving him my name. He paid no attention to me 
whatever, seemed to ignore the fact,—did not seem 
to know me in the transaction at all. Hofmayer 
went ahead and presented the demurrer and of 
course it was sustained, mine was, too, as they were 
sued as joint tort feasors, and that was the proposi¬ 
tion, it was sustained.’^ 

Rigdill does not testify that he attempted to argue, and 
in the absence of proof to the contrary, as he permitted 
Hofmayer to go, ahead, it is but fair to presume that the 
Judge believed him to be content with the argument of his 
associate. His client prevailed, and while he may have suf¬ 
fered because of an undelivered address, the court was not 
advised of the fact and surely meant no disrespect. 

The witness, Ellis, betrays a spirit equally malevolent 
and not less unmerited. He testified (Stenographic Rec¬ 
ord, p. 857) : ‘T wanted to be arrested, if I was to be ar¬ 
rested, and carried there, that I might have more grounds 
against the Judge.’' This statement seems important in 
view of the general complexion of the evidence. 

Both of these witnesses testified that the community in 
which they lived were unwilling to trust the Judge with 
their litigation, and as a consequence there was much pub¬ 
lic unrest. In reply to this it may suffice to state that 
Tifton is situated in that section of Georgia where the man¬ 
ufacture and shipment of lumber had perhaps its largest 
development. The town itself was named for its principal 
citizen, H. H. Tift, and he and the Saw Mill Men’s Asso¬ 
ciation, comprising many foremost men of that section of 
the State, in the case of Tift, et al vs. The Southern Rail¬ 
way, .et al., not only sought this court, but obtained here 
judicially the greatest relief ever accorded the shippers of 
the South under the provisions of the Interstate Commerce 
Act. 


123 Fed., 789. 
138 Fed., 753. 
148 Fed., 1021. 
159 Fed., 555. 
206 U. S., 428. 


139 


These cases were affirmed by the Supreme Court of the 
United States. That resulted not only in enjoining an 
arbitrary increase of rates upon the lumber industry, but in 
the repayment to the shippers of more than two millions of 
dollars, a large portion of which was refunded through the 
action of the court in the immediate section where Rigdill 
and Ellis reside. 

Of this case the Chairman of the Interstate Commerce 
Commission, the Honorable Judson C. Clements, wrote to 
the Judge deciding it, the letter following, which, as it is 
in a sense official is respectfully tendered: 

©ommcrcje Commissions cdp 
SSlashington. 

July 6, 1905- 


Kon. Emory Speer, 

Macon, Georgia. 

My. dear Judge: 

I “beg to acknowledge receipt of a copy of the 
Macon Telegraph of recent date, containing your opinion in the 
Lumber Case, disposed of last week. I am greatly obliged to 
you for your kindness and thoughtfulness in this respect. 

“While I had seen a brief statement of the outcome of this case, 
I had not seen anything like a full copy or synopsis of the 
opinion until I received the i^aper which you sent me. It is 
needless for me to say that I feel sure that the facts of the 
case fully justify your conclusions and that the ends of just¬ 
ice are subserved by the same. I want to say more than this: 

I am very much gratified at the principles which are so clearly- 
laid down and strongly set forth and fortified in this able 
opinion. If sustained, as I feel sure it must be, it is bound 


140 


- 2 - 

to be a leading authority >n respect, at least, to some of the 
questions sc ably treated. It will greatly clear the atmos- ^ 
phere and facilitate the v/orlc of the Coiamissicn in future 
cases. Having no other interest, of course, in these questions 
except to see the ends of Justice promoted and a law made 
reasonably effective to that end, I have the sane feeling that 
you express in respect to the great value of the railroads in 
the development of the country and their right to full and 
adequate protection equal to that accorded to every other 
interest. It would be difficult to improve upon the follov/ir^ 
statement contained in the opinion: 

"The patriotic and proper solution of every controversy 
involving the vast questions of transportation, is simply the 
trial of each case on its particular facts and with an eye 
single to the merits of the one party or the other." 

Again thanking you and with kindest regards, I am. 

Very truly yours. 



CRITICISMS OF W. C. SNODGRASS. 

Another instance of alleged arbitrary conduct on the 
part of Judge Speer is narrated by Mr. W. C. Snodgrass, an 
attorney of Thomasville, Ga. (Committee Record, p. 705). 
This has reference to the case of Hopkins, Trustee, vs. First 
National Bank of Thomasville. Mr. MacIntyre, the law 



141 


partner of the witness, Snodgrass, the firm being Snodgrass 
& MacIntyre, it appears was the largest stockholder in the 
Montgomery Drug Company, of Thomasville, and he was 
perhaps the only solvent stockholder. He was also a stock¬ 
holder and director of the First National Bank of Thomas¬ 
ville. The Drug Company becoming embarassed, sold its 
entire stock of drugs and business for ten thousand dollars. 
This was deposited with the First National Bank. It was 
understood to be a special deposit for distribution among 
creditors. But the bank held notes of the Montgomery 
Drug Company, endorsed by MacIntyre. Through what in¬ 
fluence it does not precisely appear, the Bank undertook to 
appropriate the deposit of ten thousand dollars to pay the 
notes thus endorsed, and held by it. The Montgomery Drug 
Company having been adjudicated a bankrupt about the 
time of the sale, the Trustee, Mr. Hopkins, filed a petition 
setting up that the ten thousand dollars had been deposited 
with the bank as a special deposit for the purpose of paying 
the creditors of the drug company and not the bank alone. 

The bank, notwithstanding the purpose of equal distrib¬ 
ution of the bankruptcy law, having thus obtained possess¬ 
ion of this sole asset, sought to absorb the last dollar. This, 
the Committee will observe, would have relieved director 
and partner, MacIntyre from his endorsement on the note 
as stockholder in the bankrupt drug concern. The trustee, 
through his attorneys, Patterson & Copeland, of Valdosta, 
and Hardeman, Jones, Park & Johnston, of Macon, widely 
known lawyers, brought a summary proceeding against the 
bank to recover the proceeds of the bankrupt stock. The 
action of the bank had apparently made the deposit an 
aggravated and undeniable preference in its own favor. 
The matter was first presented to Judge Sheppard, of the 
Northern District of Florida, then presiding at Valdosta, 
who directed that the evidence be taken. This was done, 
and it finally came on for hearing before Judge Speer for 
decision on the pleadings and evidence. After full argu¬ 
ment, Judge Speer held that the bank could not under the 
circumstances take the entire sum to pay the notes endorsed 


142 


by its active director, MacIntyre, and that the trustee 
should recover it for pro rata distribution among the cred¬ 
itors. The case was then carried on petition to superintend 
and revise to the Circuit Court of Appeals. That court re¬ 
versed the decision of Judge Speer, but not upon the merits 
of the controversy. It held that there was a real adverse 
claim on the part of the bank, and that the proper remedy 
of the trustee was a plenary suit and not a summary pro¬ 
ceeding. 199 Fed., p. 873. The hearing was had in open 
court at Macon. The facts were not intricate. It was 
mainly a question of law and procedure, namely, whether a 
summary proceeding before the court or a plenary suit in 
equity was the proper remedy. There did not seem neces¬ 
sity for delay or advisement. Judge Speer promptly decided 
that the petition was proper. True, he was reversed on 
appeal, and presumably therefore erred, but if there was 
no error in the trial court the appellate courts would be a 
superfluous feature of our system. Error is not corruption 
or arbitrary misconduct. The Committee is bound to pre¬ 
sume that the error was an honest mistake. There had 
been indeed material differences among the courts on this 
precise question. 

The chairman in the examination of Mr. Meldrim, in 
Savannah, elicited that there had been forty appeals from 
Judge Speer to the Circuit Court of Appeals. That court 
has been in existence twenty-three years. The appeals have 
averaged then less than two per annum. In these Judge 
Speer, the chairman stated, had been reversed in nineteen 
and affirmed in twenty-one. Even the malevolent Meldrim 
testified that was a very good record. It is less than one 
reversal a year. 

Had the chairman time to search the record further and 
to ascertain how many times Judge Speer had been affirmed 
in cases of the utmost concern by the Supreme Court of the 
United States, the record would have seemed far more 
creditable. Had it been convenient for him to ascertain 
when and how often he had been reversed by the Circuit 
Court of Appeals when the Supreme Court afterwards re- 


143 


versed that great tribunal and affirmed the ruling of Judge 
Speer, that also might have thrown some valuable light on 
his judicial record. 

A notable instance of this sort may serve to account, in 
part, for the prejudiced testimony of Mr. Snodgrass. That 
is the case of Mrs. Graves, and her daughters, of Courtland, 
N. Y. against W. W. Ashburn, a wealthy turpentine and 
saw-mill man, H. T. Crawford, a banker and saw-mill man, 
the administrator of A. T. MacIntyre, Jr., and A. T. Mac¬ 
Intyre, Sr., a close relative of the law partner of Mr. 
Snodgrass. This involved the title to two thousand acres 
of land in Colquitt County, Georgia. Mr. Snodgrass was 
of counsel for one of the defendants. Judge Speer not 
only held that these ladies had the legal title to four lots 
of land of 490 acres each, but that they were entitled to 
damages because the defendants had cut and “boxed for 
turpentine’^ the pine trees which constituted the chief value; 
also to a perpetual injunction. As to one and one-half lots, he 
held that the court did not have equitable cognizance as there 
was a complete remedy at law. The Circuit Court of Appeals 
reversed this decision, and ordered the bill dismissed, 149 
Fed., p. 968. The case was then taken to the Supreme Court 
of the United States. That court in turn reversed the deci¬ 
sion of the Circuit Court of Appeals, 215 U. S., p. 233, 
thereby affirming Judge Speer as to two and one-half lots, 
the title to which he declared to be in the New York com¬ 
plainants, and remanding the case for decision as to a lot 
and a half not passed on by Judge Speer. A final decree 
was then entered in favor of the complainants. This deci¬ 
sion was carried by the defendants to the Circuit Court of 
Appeals, and Judge Speer was affirmed by that court on 
December 23, 1913. This last case is not yet reported. 

The decision by the Supreme Court in Graves vs. Mac¬ 
Intyre, et al, is of the utmost importance to the owners 
of the vast areas of pine lands in the Southern District of 
Georgia. There the doctrine was established that an in¬ 
junction would lie to prevent the cutting of pine timber on 
such lands, and that the remedy at law for damages was 


144 


not adequate even where the trespasser is solvent. The 
Supreme Court observes: 

“The industry concerned is so important to the 
State of Georgia, and the remedy in damages is of 
such doubtful adequacy that equity properly may 
intervene, although in different circumstances an 
injunction against cutting of ordinary pine timber 
might be denied.” 

In view of such a judicial accomplishment for their 
benefit, it would be singular, if true, as stated by Mr. Snod¬ 
grass, that the people in his section did not have confidence 
in Judge Speer. Mr. Snodgrass doubtless lacks confidence 
in the Judge because it became the duty of the latter to hold 
against Mr. Snodgrass’ powerful clients in favor of the 
otherwise helpless ladies in a distant state, outfaced those 
clients of their spoils and restored them to their true 
owners. 

A similar case which has probably intensified the belief 
of Mr. Snodgrass in the arbitrary and despotic character 
of Judge Speer, was that of Mrs. Catherine Kilgore, a lady 
living in Utah, against a number of defendants in Colquitt 
County, including the administrator of the same A. T. Mac¬ 
Intyre, Jr., and the executor of A. T. MacIntyre, Sr. This was 
brought for the recovery of a largq number of lots of pine 
land, of which this poor woman had been robbed in the most 
outrageous and fraudulent manner. The opinion of Judge 
Speer on a preliminary matter appears in 119 Fed., p. 1006. 
His decision was affirmed by the Circuit Court of Appeals in 
120 Fed., p. 1020. After this decision, settlements were 
made and consent decrees taken settling the title to thou¬ 
sands of acres of valuable pine lands, and giving to the plain¬ 
tiff a large sum to which she was lawfully entitled. This case 
affected a number of influential people in that section, and 
antagonized a number of attorneys who were directly inter¬ 
ested in the result of the litigation and adversely to the rul¬ 
ing and decision of the court in favor of Mrs. Kilgore. 

In the neighborhood of Mr. Snodgrass was the great 
equity cause filed against J. L. Phillips & Company, the 


145 


Cherokee Saw-Mill Company, and the Tallahassee Saw-Mill 
Company. It involved probably a million dollars. The 
action was brought by a minority stockholder for the pur¬ 
pose of preserving the great values involved. Mr. Snod¬ 
grass was prominently mentioned to the Judge as a suitable 
receiver. The suggestion was not regarded by the court 
with favor. Hon. J. M. Wilkinson, Vice-President of the 
Georgia & Florida Railroad, was appointed, and while some 
of the properties have not prospered, the Cherokee Saw- 
Mill Company, whose plant is located a few miles from 
Thomasville, the home town of Mr. Snodgrass, is now under¬ 
stood to be entirely solvent and one of the large enterprises 
of that section. That solvency was doubtless saved by the 
action of the court. 

The unfavorable opinion which Mr. Snodgrass entertains 
of Judge Speer must be of recent origin. The Judge is the 
proud possessor of a memorial to the President, duly 
authenticated by the Department of Justice, commending 
him in unreserved terms for promotion to the Circuit Court 
of Appeals of the Fifth Circuit. It is signed by many dis¬ 
tinguished gentlemen of the Thomasville Bar, and notable 
in the admiring list is the name of “Snodgrass. 


CORRUPT CONDUCT IN RAISING THE AMOUNT OF 

FEES ALLOWED TO OTHERS, IN ORDER THAT 
HIS SON-IN-LAW MIGHT PROFIT THEREBY. 

This charge is based upon a statement furnished the Ex¬ 
aminer by Alexander Akerman, relative to fees in the Mize 
& Oliver and A. D. Oliver cases, a very extensive and com¬ 
plicated litigation. 

Under the practice in this District, applications for fees 
on the part of attorneys and receivers in bankruptcy cases 
are referred to Special Masters, who hear and investigate 
the record and report the actual value of the estate, the 
character of the services rendered, and the approximate 
amount of compensation to be allowed. Upon the filing of 



146 


this report the clerk is required to give five days^ notice to 
parties at interest and exceptions must be filed within that 
period. 

This practice is fully described by Judge Speer. In Re. 
Huddleston, 167 Fed., 431. 

The compensation allowed the Special Master is invar¬ 
iably small; the practice insures a thorough judicial inves¬ 
tigation of each application, and has saved many thousands 
of dollars to the estates of bankrupts. 

This course had been adopted in the case of A. D. Oliver, 
Mize & Oliver, and other branches of the '‘Oliver Case.’^ 

There were before the Judge the Masters’ reports on sev¬ 
eral applications for fees, including the following: Hawes 
& Pottle and Talley & Heyward, attorneys for F. S. Jones, 
Trustee of A. D. Oliver; also application and report of 
Master thereon of W. H. Krause, Donalson & Donalson, 
Hawes & Pottle and Talley & Heyward, attorneys for peti¬ 
tioning creditors in the case of Mize & Oliver; also report 
of Master on application of George F. White, receiver of 
Mize & Oliver estate. 

To all of these reports no exception had been filed and the 
time for exceptions had expired. 

The sole exception was to the report on the application 
of Akerman & Akerman and W. C. Snodgrass, attorneys 
for Geo. F. White, receiver, allowing these attorneys $200 
as fees. To this Akerman & Akerman and W. C. Snodgrass 
had filed exceptions on the following grounds: 

“Because the fee recommended by the Master is 
too small and is inadequate compensation; because 
the testimony was that a reasonable fee would be 
$500; because the fee recommended by the Master 
is disproportionate to fees recommended to be 
allowed to other counsel in said case.” 

The reports of the Master contained an itemized statement 
of the value and condition of the estate, and showed that 
there was sufficient money in hand to pay the fees allowed 
by the Master. 


147 


These reports and the orders thereon were submitted to 
the Committee. 

Notwithstanding the fact that no exception was or could 
have been filed, Mr. Alexander Akerman seeks to show that 
Judge Speer raised the fees of Akerman & Akerman and 
W. C. Snodgrass from $200 to $375, not because of the 
merit of their contention that they were entitled to $500, 
but to keep Akerman from objecting to the payment of the 
fee allowed Hawes & Pottle and Talley & Heyward, Mr. Hey¬ 
ward being Judge Speer’s son-in-law. 

The relating evidence of Mr. Akerman is as follows 
(Stenographic Record, pp. 1065-6-9) : 

“About July 21st, 1911, I was at Mount Airy. Mr. 
Heyward, of the firm of Talley & Heyward, came 
to Mount Airy with the Master’s reports fixing the 
allowance for several of the counsel or parties to the 
case, counsel and officers. Judge Speer and Mr. 
Heyward walked over to me on the lawn at the 
hotel, and the Judge remarked that Hasell was badly 
in need of some ready money, or money, I don’t re¬ 
member which, and asked if there was any reason 
why the fee allowed Messrs. Hawes & Pottle and 
Talley & Heyward, and I don’t know who else, 
should not be allowed at that time. And I stated to 
the Judge the only reason I had to urge against 
the fee allowed other counsel, was that my informa¬ 
tion was there was not enough money to go around, 
and that the fee that had been allowed my interest 
was grossly inadequate, and that I had filed or in¬ 
tended to file exceptions. Mr. Heyward immediately 
assured us that there was enough money to go all 
around, and the Judge said if my fee was raised in 
proportion would that remove my objection. I told 
him it would, because I was still of the opinion we 
would have to pro rate. The master had recom- 
rnended an allowance of $200 for the services of 
Akerman & Akerman and W. C. Snodgrass. I told 
him that was my objection. He took the papers 
and turned them over to his secretary. He allowed 
Akerman & Akerman and W. C. Snodgrass $375. 
My recollection is he stated to me in that conversation 
that he would raise my fee to $500, which I had tes¬ 
tified was the correct or proper amount, or to $450, 


143 


but when the papers came back down here it was 
$375.’’ 

The Committee, it is respectfully submitted, should look 
very carefully to this testimony of Mr. Akerman and con¬ 
sider it in connection with his written statements to the 
Attorney-General. He now states “his recollection and im¬ 
pression.” 

The inquiry of Judge Speer to him on the lawn at Mount 
Airy, as the witness relates it, referred not to the amount 
or propriety of the fees of Talley & Heyward, and the 
other attorneys who were with them in the case, but to the 
time when the allowance was to be made, whether there was 
objection to paying it now, and whether there was a fund 
in hand sufficient to pay all the fees allowed. 

The following questions were asked the witness Aker¬ 
man (Stenographic Record, p. 1069) : 

“The Chairman: He told you Hasell wanted his 
money now, and if you did not object to his allow¬ 
ance that he would raise you, according to your con¬ 
tention ? 

“Mr. Akerman: I have related his language as 
near as I can after that lapse of time, and that was 
the impression I got, sir. 

“Mr. Volstead: Do I understand that he would 
raise yours if you would not object to Heyward’s? 

“Mr. Akerman: No, sir, I had not excepted to 
Heywards, I was objecting to his making any al¬ 
lowance at that time until all the money came in, if 
there was not enough to go around we would have 
to pro rate equally, that was the point I was mak- 


Not only does Akerman testify that he had not excepted 
to Talley & Heyward’s fee, but it is true that he then could 
not except. The time to file exceptions under the rule had 
expired. The rule of force is as follows: 



149 


It is by the court ordered, that in all cases, before 
the report of a Special Master, allowing, fees to at¬ 
torneys or other officers in bankruptcy, shall be 
presented to the court, said report shall have been 
filed in the Clerk’s Office, for at least five days, and 
that written notice of the day and place of presen¬ 
tation of the report to the Judge, and the hearing 
thereon, shall have been given by the Clerk, to the 
trustee, and to the bankrupt, or their attorney of 
record, for at least three days. 

“This 30th day of April, 1907. 

“(Signed) EMORY SPEER, Judge.” 

Now in his statement to the Attorney-General or hi> Ex¬ 
aminer, Akerman said that the time for excepting to the 
reports had not expired. 

Again in his statement to the Attorney-General, or his 
Examiner, or both, Akerman charges Judge Speer said “If 
your fee is raised to $500 will you still object to the money 
being paid out?” 

Here, under oath, he says, “My recollection is he stated 
to me in that conversation that he would raise my fee to 
$500, which I had testified was the correct or proper 
amount, or to $450, but when the papers came back down 
here it was $375.” 

In his statement to the Chief or other officer of the De¬ 
partment of Justice, Mr. Akerman made an imputation on 
Judge Speer. Here it seems, taking his statement as true, 
all that the Judge did was to suggest that Heyward needed 
the money which had been adjudged his firm and his asso¬ 
ciate counsel, and asked Akerman if there was any reason 
why it should not be allowed at that time. This alone, if 
true, would seem unimportant. Conceding arguendo that 
Akerman’s testimony is true, here is no corruption. The 
report of the Master was prima facie correct. As early as 
Harding vs. Handy, 11 Wheaton, 126, Chief Justice Marshall 
declared: 


“The report of the Master is received as true, when 
no exception is taken.” 


This ruling is followed in many cases. 


150 


This would seem conclusive when under an established 
rule of practice the time for filing exceptions had expired, 
and none in fact had ever been filed or were now offered. 
But, if the Committee will consider the accusing statement 
of Akerman to the Attorney-General, along with his testi¬ 
mony here, and with the record, his inconsistencies will 
likely make them discard both altogether. 

Again, under the familiar rule the Judge should have the 
benefit of the presumption that he acted regularly and 
lawfully. Omnia praesumunter rite et solenniter esse acta. 

Then, there is Judge Speer’s opinion in the record (Steno¬ 
graphic Record, p. 2174). This the Committee has heard 
read. This was on the only exception pending and that was 
Akerman’s to increase his own fee. It was all in vacation 
at Mount Airy. There were present Mr. Heyward, Mr. 
Cooper Morcock, the official stenographer, and Judge 
Speer. They were all sitting in a swing on the lawn 
in front of the Monterey Hotel. When Mr. Akerman 
finished his statement, or argument, in support of his 
exception. Judge Speer immediately turned to the stenog¬ 
rapher and dictated his opinion, reviewing the remark¬ 
able character of the case, modifying the report of 
the Master, and fixing the fees. This was the testimony of 
Judge Speer,—this would have been the testimony of Mr. 
Heyward and Mr. Morcock, both of whom were in attend¬ 
ance at the sittings at Macon, Mr. Morcock, now Deputy 
Clerk, was at Savannah also. Mr. Morcock and Mr. Hey¬ 
ward are widely known to be gentlemen of character and 
honor. They will both testify that after Judge Speer’s 
dictation was completed, Mr. Morcock at once repaired to 
his temporary office across the street above the store of 
A. L. Kimsey, and Heyward and Akerman followed him 
there and remained a part of the time, at least, while he 
was transcribing the opinion. 

It may be added that on account of the interest of the 
case, the opinion of the Judge was contemporaneously pub¬ 
lished in one or more newspapers of the state. He fixed the 
fees and disallowed Talley & Heyward and their associates 


151 


an expense account allowed by the Master, of $125, and in 
terms expressly allowed Akerman a fee of $375. The 
attention of the Committee is especially invited to this 
opinion (Stenographic Record, p. 2174.) This shows by 
the record the utter inaccuracy of Akerman^s recollection 
and would seem] to utterly refute the charge of raising the 
amount of fees allowed to others in order that his son-in- 
law might profit thereby. 


THE SCARBORO CASE. 


Frank Scarboro, Cashier of the First National Bank of 
Tifton, was indicted for violation of section 5209 R. S., 
making false entries, putting forth unauthorized certificates 
of deposit and making false reports to the Comptroller of 
Currency. 

The case was tried before Judge Speer at Albany in April, 
1912. Mr. Alexander Akerman, United States Attorney, 
alone appeared for the United States, his two assistants, 
Mr. Chas. Akerman, his brother, and Mr. Codington, being 
in attendance on a court held in Augusta by Judge Shep¬ 
pard. 

The defendant was represented by Reuben R. Arnold, of 
Atlanta, L. P. Skeen, of Tifton, F. G. Boatright, of Cordele, 
Talley & Heyward, of Macon, and Judge D. F. Crossland, 
of Albany. 

On the first day of the hearing a considerable time was 
devoted to the argument of demurrers. 

Mr. Alexander Akerman, who makes the complaint about 
the case, says (Stenographic Record, p. 1082) : 

“There were numerous demurrers filed and various 
attacks upon my indictment. I had discovered, my¬ 
self, that perhaps six counts in the indictment were 
defective, and had gone before the Grand Jury, 
which cured all of those defective counts not barred 
by the statute of limitations. They attacked all the 
remaining bad counts, and I had to concede they 
were bad. We argued the demurrers. I was alone. 




162 


Judge Speer sustained some pd overruled som^ I 
have no criticism of his ruling there at all. (^e 
witness had partially testified as an expert as to his 
examination of the books of the bank.’^ 

The court then adjourned until next morning, and at 
6:30 o’clock Judge Speer sent for Mr. Akerman and said 
(Stenographic Record, pp. 1083-4-5) : 

“Mr. Akerman, I am going to say something to 
you which I very much fear you won’t appreciate 
* * * in this case which is on trial the evidence 

has progressed far enough to convince me the defend¬ 
ant is clearly guilty, and you know how anxious I 
am that there shall be no miscarriage of justice in my 
court, and I wanted to state to you that I think you 
are overmatched in counsel.” 

“I said, 'Judge, nobody realizes that more than I 
do, and I think I am entirely overmatched.’ ” 

As a result of the conversation, Mr. Akerman secured 
authority, and Messrs. S. S. Bennett and John D. Pope, 
composing the firm of Pope & Bennett, were appointed 
Special Assistant District Attorneys. Mr. Akerman states 
the case progressed several days, “piling up evidence,” and 
further says that “without a moment’s warning, and with¬ 
out the slightest intimation. Judge Speer turned loose on 
the charge * j^g^ ^ little short of directing 

a verdict of not guilty.” 

He says (Stenographic Record, p. 1086) that in his 
statement to the Examiner, Mr. Lewis, he had character¬ 
ized the Judge as follows: 

“Judge Speer delivered from a carefully prepared 
manuscript, the most terrific charge against the 
Government, and which was very little short of per¬ 
emptory instructions for the defendant,” 

and further 

“There is a copy of the charge on file in the De¬ 
partment. I sent it with a special report in that 


153 


case, to make it apparent why I had not won the 
case. 

Mr. Akerman further testifies (Stenographic Record, p. 
1087), that during the supper hour, Mr. White, United 
States Marshal, came to him and asked if he would be 
satisfied with a mistrial in that case, and ‘‘I told him, after 
that charge, I would be satisfied with anything,” and at 
eight o’clock a mistrial was declared, that “Mr. White aft¬ 
erwards told me that when he told Judge Speer that the 
jury stood either eight to four or ten to two for conviction, 
the Judge told him not to let them go back to deliberate, but 
to keep them walking until he could get back there and de¬ 
clare a mistrial.” 

Mr. Akerman says that in his opinion Scarboro was 
guilty (Stenographic Record, p. 1088), but adds: 

“I must say, however, on another trial of the same 
case, before another judge, I think the jury stood 
exactly the same, only Judge Grubb kept them out 
ninety-six hours, and there was another mistrial.” 

When a copy of the charge was handed Mr. Akerman on 
the witness stand (Stenographic Record, p. 1124), he stated 
that he had never read it. He was asked to read the charge 
handed to him and point out the portion he criticised, but 
was unable to do so. 

Referring to the second charge before Judge Grubb, Mr. 
Akerman says his charge was “a little more favorable to 
the Government,” and that “the jury hung up ninety-six 
hours and had another mistrial.” And then he nol prossed 
the case (Stenographic Record, p. 1133) and has “repeat¬ 
edly” called the attention of the Department to the fact 
that “I thought the penalty was entirely too severe, and 
has a tendency to prevent a verdict of guilty.” 

Mr. Akerman was asked about a quotation from the 
charge (Stenographic Record, pp. 1134-5) and asked if that 
was the language he had reference to as being terrific? He 
replied that Judge Speer referred to the defendant’s wife 


154 


and child. Mr. Akerman was then handed a newspaper 
account of the remarks made by Judge Speer on declaring 
a mistrial and asked if the language he complained of did 
not appear in those remarks and not in the Judge’s charge. 

Mr. Akerman (Stenographic Record, p. 1138) says, “I 
am inclined to think that was before a mistrial was de¬ 
clared, or it might have been right afterwards, but I stated 
to him that I have no authority to say that the Depart¬ 
ment would not put the case on trial again, but that th0 
general policy of the Department was not to re-try a case 
where there had been a mistrial.” 

Mr. Geo. F.White, U. S. Marshal (Sten. Rec., p.l387) testi¬ 
fies that about half past four o’clock in the afternoon. Judge 
Speer came to the court house and stated that he wanted 
to take a ride, and asked him to inquire if the jury would 
agree soon, and if not he would take a ride. Mr. White 
made inquiry of the jury and was told that “they had not 
agreed and there was no hope of an agreement. Judge 
Speer said he would take a ride, and told him I could take 
the jury for a walk before supper, but to tell the Deputy 
Marshall and Bailiff in charge of them not to allow the 
jury to talk to anybody and to keep them together. I have 
been letting them go by their homes to get clean clothes 
and other things.” 

In regard to the incident at the supper-table, Mr. White 
testifies (Stenographic Record, p. 1388) : “As I went in 
the dining-room, Mr. Akerman called me to his table. He 
asked me how things were going, and I said I think we will 
get a mistrial, will that be satisfactory?” He said, “Do you 
think that is the best we are going to get?” I said, “I 
guess so.” 

Mr. White further says that he was not directed by Judge 
Speer to keep the jury walking until he could get back so he 
could direct a mistrial. 

The jury was in charge of Frank Riley, a Deputy Marshal, 
and Harry Burns, a Bailiff. They took a walk before sup¬ 
per and after supper about half past eight o’clock, went 
back to the court house for further deliberation. 


155 


Frank L. Riley, then and now a Deputy United States 
Marshal, who had charge of the jury, was in the court room, 
at Macon, while the investigation before the Committee was 
going on, but was not called as a witness, although atten¬ 
tion was called to his presence in the room. 

An affidavit of Harry Burns, a bailiff, who, with Frank L. 
Riley, attended the Scarboro jury, was read into the record 
before the Committee. (Stenographic Record, p. 1249), 
Chairman Webb stating ‘‘We have the statement of Harry 
Burns, whom the committee is informed is somewhere in 
Florida, and therefore we will use the affidavit.’’ 

Mr. Burns was present at the hearing before the Com¬ 
mittee during the following week at Savannah, being 
brought there as a witness as will appear from the records 
of the Sergeant-at-Arms, but he was not sworn. 

In this affidavit Mr. Burns says: 

“When we got through with supper, he (Geo. F. White, 
United States Marshal) came to me and instructed me to 
keep the jury walking and not to take them back to their 
room for further deliberation until specially instructed to 
do so. This instruction was followed and we kept the jury 
walking for about an hour before we were called in.” 

As already stated, Mr. Riley, and not Mr. Burns, was in 
charge of the jury, and Mr. White has testified that he gave 
no instructions to any one after supper, that the walk taken 
by the jury was taken before supper. 

Judge Speer states in his testimony that before the mis¬ 
trial was declared Mr. Akerman, the United States At¬ 
torney, Mr. Smith, the Treasury Agent, and Mr. Talley, one 
of the attorneys for the defendant, were called into his 
office, and all agreed that it was unnecessary to keep the 
jury together longer because a mistrial was inevitable. 

When the jury was called in Judge Speer in his remarks 
from the bench stated that he had been assured by the Dis¬ 
trict Attorney that the ends of justice in that case would be 
met by a mistrial. Mr. Akerman was present and made no 
protest or objection. 

In this matter Mr. Akerman seems conspicuously in error. 


156 


except in his statement about the demurrer, his concession 
that he was “entirely overmatched’' by the numerous and 
distinguished counsel for the defense, and his further state¬ 
ment that on another trial of the same case before Judge 
Grubb, when the jury was kept out for ninety-six hours, 
there was another mistrial. 

His indictments were shockingly bad. Many counts were 
stricken on demurrer, but he testifies “I have no criticism 
of his ruling there at all.” 

Notwithstanding this, and what seemed his sad lack of 
preparation the Treasury Agent seemed, early in the trial, 
to make out a prima facie case. Nevertheless, for the rea¬ 
sons above stated, it seemed there would be an inevitable 
miscarriage of justice, this it was deemed the duty of the 
Judge to prevent, if he could. The suggestion that the Gov¬ 
ernment should have additional counsel was accordingly 
made and was accepted in apparent good part and acted 
upon. 

After several days of “piling up evidence,” to quote Mr. 
Akerman’s language, he continues, “and without a moment’s 
warning, and without the slightest intimation. Judge Speer 
turned loose on the charge * ❖ * j^g^ ^ little 

short of directing a verdict of not guilty.” 

Surely Mr. Akerman does not mean to intimate that there 
were not several arguments both for the Government and 
for the defense, after the evidence was concluded. Judge 
Speer has never been apprised of any rule of practice which 
requires him to give even a “moment’s warning” or even 
the “slightest intimation” to counsel of the nature of the 
charge he proposes to make to the jury. 

The Committee will observe, however, that the whole 
incident as related by Mr. Akerman, may serve to con¬ 
found those disgruntled corporation and other attorneys 
who testified that Judge Speer invariably jumped to a con¬ 
clusion and drove the jury to find an according verdict. 
Certain it is that he did not “turn loose” until after all the 
evidence was in and the concluding argument and the other 
arguments were made. That his charge was carefully pre- 


157 


pared and in manuscript, it is submitted, is not reprehensil:)le. 
The Committee has a copy of that charge and Judge Speer 
most respectfully invites their careful scrutiny to the prin¬ 
ciples it announces for the guidance and assistance of the 
jury, its language and temper. 

The grave trouble with Mr. Akerman’s case was not the 
charge of the Judge, but the youth of the accused and the 
minimum punishment of five years in the penitentiary. This 
no doubt had great weight with the jury before Judge 
Speer and the second jury before Judge Grubb. In each 
case there was a mistrial. 

Again the statement which Akerman attributes to the 
Marshal, Geo. F. White, viz.: that Judge Speer told him 
to keep the jury walking so they could not deliberate until 
he could get back to the court house and declare a mistrial, 
is not only hearsay, but it is flatly contradicted by White 
himself. Judge Speer also testified that the only directions 
that he gave about the locomotion of the jury was to let 
them have a walk before supper, with instructions that they 
be permitted to speak to no one. Burns, a bailiff, made an 
ex parte statement which was read into the record (Steno¬ 
graphic Record, p. 1249). He was not present at the hear¬ 
ing in Macon, but he was subpoenaed from a distant point in 
Florida and attended several days in Savannah. Judge 
Speer states, on information and belief, that Burns in¬ 
formed the Examiner that he desired to change his affi¬ 
davit and substantially to make his statement conform to 
Mr. White’s, viz.: that no unusual or improper suggestion 
was made to him. He, however, was not in charge of the 
jury. This duty fell upon Deputy Marshal Riley. That 
officer was in attendance on the court at Macon. His pres¬ 
ence in the court room was called to the attention of the 
Committee, but neither Burns in Savannah, or Riley in 
Macon, were sworn as witnesses. Judge Speer states on 
information and belief that Riley will also testify that he 
received no unusual or improper instructions from the 
Marshal. The fact is that the only walk the jury took that 
day, save to and from the hotel, where they were boarded. 


158 


was before supper. After that meal they returned to the 
jury room and were there for some time presumably delib¬ 
erating. It was during this time that Judge Speer, as ap¬ 
pears from his testimony, held a conference with the attor¬ 
neys for the prosecution and defense and the Treasury 
Agent as to the propriety of declaring a mistrial. Again, 
the Marshal was sent to the jury in accordance with the 
usual practice to ask the foreman if they had agreed on a 
verdict, or were likely to agree. On his return, the Judge 
was informed that they would never agree. They were 
brought into the court room and Judge Speer, in directing 
the mistrial, made certain remarks which were stenographi- 
cally reported and were printed in the Albany Herald the 
next day. These are in the record and have been read to 
the Committee. 

In these remarks. Judge Speer stated, among other 
things : 

'‘When cases have been so thoroughly tried, and there 
has been such careful sifting of the evidence, and when 
jurors of the highest class, and pardon me, gentlemen, I 
think you are of that class, conscientiously hesitate, it is 
usually an end of the case. That is the opinion of the Dis¬ 
trict Attorney, and the officer of the Treasury in charge 
tells me that he things a mistrial in this case, under all 
circumstances, would probably be tantamount to the same 
thing, in its effect, as a conviction. Now, that being true, 
it may be that a mistrial will accomplish no injury, but on 
the whole will produce beneficial results,—the law will be 
vindicated and the life of an amiable family will be saved.'' 

District Attorney Akerman and Treasury Agent Smith 
were both in the court room and near the Judge when these 
remarks were made,—both had been consulted as to the pro¬ 
priety of the mistrial, and neither made the slightest ob¬ 
jection. It is true that in his remarks to the jury directing 
a mistrial. Judge Speer made some reference to the wife 
and child of the accused. He made no such reference in 
his charge as the copy in evidence will show. Mr. Akerman 
testifies that he did, but he has plainly confused what was 


159 


said in directing the mistrial with what was said in the in¬ 
structions to the jury. A copy of both have been submitted 
to the Committee. 


FINES OF KEARNEY WRIGHT, EMMA POWERS AND 
C. R. MULHOLLAND. 

Kearney Wright, the assistant janitor employed by the 
custodian to keep the court-room clean, was asked if he 
had ever been fined. He replied (Stenographic Record, p. 
145) : 

'T remember, sir, once I was fined. I left the cuspidors 
off one evening after cleaning them * * * an over¬ 
sight * ❖ ❖ j brought up and fined one dollar, 

but I did not pay it. The Judge fined me because I left 
the cuspidors fouL’’(Stoengraphic Record, p. 146.) 

He was asked if he was ever required to give a bond. He 
replied (Stenographic Record, p. 148) : 

‘T never was required to give a bond, because if I had I 
would have known it, because I see Mr. Erwin try cases 
every day and give a bond, and I have assisted my friends 
in getting up bonds.” 

Emma Powers, who cleans up the court-room, says she 
has been so engaged for twenty-five years. She was asked 
by the Chairman if the Judge had ever fined her for con¬ 
tempt for failing to clean up the room. Emma Powers 
replied (Stenographic Record, p. 149) : 

'‘He told Mr. Tucker something about it. Colonel, but he 
never said anything to me. Mr. Tucker said that the Judge 
said I would have to pay a dollar because the court-room 
was not clean.” (Stenographic Record, p. 150.) 

She says she gave Mr. Tucker, the Chief Deputy Marshal, 
a dollar, but that Mr. White, Marshal, gave the dollar back 
to her. 

She was asked by the Chairman if she ever had to sign 
a bond. She replied (Stenographic Record, p. 151) that 
year before last Mr. Tucker said “I had to sign a bond, but 



160 


I told him I do not know anything about that. I did not 
sign it. I think he said it was ten dollars, but I told him 
I did not have ten dollars, and Mr. Tucker said it seemed 
like it was a joke. I thought it was a joke.’^ 

On page 153 of the record is what purports to be an order 
of Judge Speer imposing a fine of $10 on Kearney Wright 
and Emma Powers, and suspending the collection of the fine 
until the further order of the court. This is signed April 
14th, 1910. 

Emma Powers says (Stenographic Record, p. 155) that 
Mr. Erwin “just laughed when I came and told him that I 
must pay ten dollars. I told him I did not have any ten 
dollars to pay and then he laughed and said it was all off.” 

Mr. Tucker was sworn (Stenographic Record, p. 533), 
and produced his cash book from the Marshal’s office show¬ 
ing fines imposed on Kearney Wright, janitor, $1.00, and 
on Emma Powers, charwoman, $1.00, under date of De¬ 
cember 10, 1910. 

Mr. Tucker said (Stenographic Record, p. 544) Mr. White 
handed him the money and said Judge Speer had paid it for 
Kearney and Emma. 

George F. White (Stenographic Record, p. 1309) says 
that Judge Speer paid the fine of Kearney and Emma. 

Mr. Tucker produced his cash book showing that a fine 
of $3.00 was imposed on C. R. Mulholland, bailiff, on De¬ 
cember 10, 1910. He was drunk in the court house in 
Savannah, and was also drunk on the train coming up from 
Savannah. Mr. White will testify that he was also drunk 
in the court house on the morning after he was fined $3.00. 

The Committee will not find it difficult to discover that 
these incidents were part of a good-humored effort by 
Judge Speer and the court officers to persuade the colored 
janitor and janitress to keep the court room clean and in 
a proper sanitary condition. This is rather difficult with 
the kindly but somewhat self-indulgent help of this sort. 
Yet, the inspectors of public buildings have often com¬ 
mended the cleanliness and care with which the court rooms 
and offices in the Southern District of Georgia are kept. 


161 


The Committee, doubtless, has observed this. It here ap¬ 
pears that the small fines collected from Emma and Kearney 
were actually paid by Judge Speer himself. 

The case of Mulholland, a bailiff, was a little more serious. 
He was drunk in and around the court-room when on duty, 
drunk on the train and forced himself into the sleeping-car 
where the Judge and the court officers, with some of the 
ladies of their families, were returning from Savannah. 
The Marshal will testify that he was drunk in the court¬ 
room the Monday following when the fine of $3.00 was 
imposed. 


OPPRESSIVE CONDUCT IN ALLOWING MONEY TO 

REMAIN ON DEPOSIT WITHOUT INTEREST IN 
BANKS IN WHICH RELATIVES AND FRIENDS 
WERE INTERESTED. 

Complaint is made by W. A. Huff, that the proceeds aris¬ 
ing from the sale of the property of the defendants in the 
case of W. L. Bidwell, et al. vs. W. A. Huff, et aL, were de¬ 
posited in the Commercial National Bank, of Macon, the reg¬ 
istry of the court, and at that time the only general depos¬ 
itary for such funds in Macon, and permitted to remain on 
deposit without interest pending an appeal from the Dis¬ 
trict Court to the Circuit Court of Appeals from an order 
confirming the sale, and pending other proceedings prior 
to the final distribution of the fund. A statement of this 
litigation appears elsewhere in this defense. 

The sale of this property was made on the first Tuesday 
in December, 1909, in pursuance of a final decree entered 
on January 6, 1906, affirmed by Circuit Court of Appeals 
April 12, 1907 (151 Fed., p. 563), and Supreme Court 
United States March 17, 1909 (214 U. S., p. 528). The 
sale was confirmed by Judge Speer on December 11, 1909, 
and the proceeds deposited in the registry of the court. An 
appeal was again taken by Huff to the Circuit Court of 
Appeals, and the order of Judge Speer confirming the sale 



162 


was affirmed by that court, April 15, 1910 (176 Fed., p. 
1022), and appeal to Supreme Court of United States de¬ 
nied June 1, 1910 (180 Fed., p. 374). Then litigation 
ensued over the distribution of the proceeds, but the fund 
was in large part distributed under order of May 1, 1913. 
Nevertheless several appeals are now pending in Circuit 
Court of Appeals as to the distribution of the remainder. 

The two instances where the Judge is sought to be crit¬ 
icised for failure or refusal to allow the investment of funds 
in the registry of the court arise out of the testimony of 
Colonel Garrard at Savannah, and the testimony in relation 
to the Huff case, a portion of which was heard at Macon, 
and a portion at Savannah. 

The Commercial National Bank of Macon had been made 
the registry of the court, by order of April 2, 1909, more 
than eight months before the sale of the Huff property and 
the collection of the proceeds. Since at the time it was made 
the registry of the court this bank was the only general de¬ 
positary, Judge Speer had to make it the registry or remit 
all funds colected on mesne or final process in the Western 
Division to the registry at Savannah, in the Eastern Division. 

The law regulating the investments of money in the reg¬ 
istry of the court is in the following language: 

^‘All moneys paid into any court of the United 
States or received by the officers thereof, in any 
cause pending or adjudicated in such court, shall be 
forthwith deposited with the treasurer, an assistant 
treasurer, or a designated depositary of the United 
States, in the name and to the credit of such court, 
provided that nothing herein shall be construed to 
prevent the delivery of any such money upon secur¬ 
ity, according to agreement of parties under the di¬ 
rection of the court.” 

Revised Statutes, Sec. 995. 

5 Fed. Statutes anno., page 70. 

‘‘No money deposited, as aforesaid, shall be with¬ 
drawn except by order of the judge or judges of said 
courts respectively, in term or in vacation to be 
signed by such judge or judges, and to be entered 


163 


and certified of record by the clerk; of which it was 
drawn. And it shall be the duty of the judge or 
judges of said courts, respectively, to cause any 
rnoneys deposited as aforesaid which have remained 
in the registry of the court unclaimed for ten years 
or longer, to be deposited in a designated depositary 
of tile United States, to the credit of the United 
States.’' 

Revised Statutes, Sec. 996. 

5 Fed. Statutes anno., page 71. 

Hutley vs. Edwards, 160 Fed., p. 619. 

In each of the instances referred to in the testimony the 
money in question had reached the registry of the court and 
had been deposited in a designated depositary of the United 
States as required by law. The law required it there to 
remain until distributed by appropriate orders or decrees, 
duly entered in the cause. There is a proviso, however, that 
the court might deliver the money thus deposited upon 
security when the parties agreed that this should be done 
and the court directed it. That is, the withdrawal of the 
fund from the registry of the court required three things: 
First, the agreement of the parties; second, the tender of 
security; and third, the direction of the court. It was not 
the purpose of this provision to withdraw from the dis¬ 
cretion of the court the determination of the custody of the 
fund. If the parties agreed upon the withdrawal of the 
fund and security was offered, the judge would have the 
right to reject the proposition for the reason that the 
security offered was insufficient, or if the security was 
deemed to be sufficient, for the reason that under all the 
circumstances of the case it would not in the opinion of the 
judge be to the interest of all concerned to withdraw 
the fund for investment. The purpose to be accom¬ 
plished by the court relative to such fund was to see 
that it finally reached the parties entitled when appropriate 
and final decrees were entered, and it is the duty of the 
judge to exercise discretion in such a way that the possi¬ 
bility or probability of loss would be reduced to a minimum, 
and that when the time for the final decree or distribution 


164 


arrived that the fund would be available and subject to the 
direction of the court. That is to say, that the loss of in¬ 
terest upon the fund was to be compensated by the fact that 
the fund was in the custody of the court and absolutely 
safe and ready to be delivered when the time for the dis¬ 
tribution arrived. 

In the case referred to by Col. Garrard in his testimony, 
the Judge exercised the discretion which the law vested in 
him and held the fund in the registry of the court where it 
was absolutely safe, and declined to allow the same to be 
withdrawn, and placed in other banks at interest where it 
might have been reasonably safe, but its safety was not as 
absolute as in the first instance. This was certainly not an 
abuse of discretion, and even if it should be deemed that the 
discretion was abused it was a matter which was subject to 
review and correction by a reviewing court. It is to be 
noted that there is no suggestion whatever that the Judge 
was interested directly or indirectly in the bank which was 
the designated depositary in this case, and no friends or 
relatives were interested therein, and there is not the 
slightest hint in this case of anything which might be tor¬ 
tured into an improper motive. All that appears is that the 
matter was informally presented to the Judge, and for rea¬ 
sons which were satisfactory to him and which were the 
basis of the exercise of his discretion, he declined to allow 
the fund to be withdrawn from the registry. It is also to 
be noted that the matter, as stated, was referred to him 
simply informally, and he declined it, giving the reasons 
which appear in the testimony of Col. Garrard and in his 
own testimony, and at most, this transaction cannot be 
construed to be anything else than an error of judgment and 
an exercise of discretion which might not have been done 
by another judge similarly situated. 

In relation to the fund which was deposited in the reg¬ 
istry of the court in the Huff case, there was never any 
agreement of the parties or offer of security or even appli¬ 
cation to the court asking for the withdrawal and invest¬ 
ment of the fund. The evidence of Mr. Felder, counsel for 


165 


Mr. Huff, establishes these facts conclusively, and the state¬ 
ment of Mr. Felder on .the hearing before the Special Mas¬ 
ter when the matter of the fee of Messrs. Hall & Wimberly 
was under investigation, shows conclusively that there was 
no desire on his part to withdraw the funds from the reg¬ 
istry, even after a suggestion by the Special Master was 
made that there might be a partial distribution in order 
to pay creditors whose claims were undisputed, and thus 
save the interest which was accruing upon such claims. In 
this case there is the suggestion that the Judge was holding 
this without interest in the depositary, for the reason that 
he had relatives and friends who were stockholders and 
officers in the bank. The bank which was in this instance 
the registry of the court, was one that was designated as a 
depositary before the sale of the Huff property, before it 
was foreseen that there could be any fund of this character 
subject to be deposited, and under the mandatory require¬ 
ments of the statute the Judge was compelled to order the 
deposit in this bank there to remain until distributed accord¬ 
ing to law, or withdrawn by agreement of parties under the 
direction of the court. 

In the one case, that testified by Col. Garrard, there was 
an exercise of discretion which left the fund in a bank with 
which the Judge had not the remotest connection and in 
which he was not in any way interested directly or indi¬ 
rectly. In the other case, he was not given the privilege, if 
it may be so denominated, of exercising a discretion, the 
defendant himself and his counsel failing and refusing to 
make any application to the court which would bring to the 
Judge the right to exercise a discretion in reference to the 
matter. In the one case, there is no hint of an improper 
motive. In the other case, there is a charge of an improper 
motive, when the Judge was powerless under the circum¬ 
stances to do otherwise than allpw the fund to remain where 
the law compelled it to be deposited. 


166 


THE E. B. HARRIS CASE. 

E. B. Harris was a shoe dealer in Macon. He owned a 
valuable corner lot upon which his place of business was 
located. In 1906 he contracted to sell this property for 
$36,000 to C. S. Henry, of New York, Henry being repre¬ 
sented in the negotiations by J. Clay Murphey, as agent. 
Murphey brought suit for specific performance in the State 
Court, but the suit was dismissed because brought in the 
name of the agent instead of the principal. (Murphey vs. 
Harris, 133 Ga., 364.) Thereupon, Henry filed a bill in the 
United States Circuit Court for specific performance. The 
case was referred to a Master, who reported in favor of 
Henry. Numerous exceptions to the report of the Master 
were filed. In this litigation Henry was represented by W. 
D. McNeil and M. Felton Hatcher, and Harris by Miller & 
Jones. While the equity case was pending on Harris’ excep¬ 
tions to the Master’s report, Arthur L. Dasher, Jr., on be¬ 
half of a number of merchandise creditors filed an involun¬ 
tary petition in bankruptcy against Harris. Harris filed 
his schedules, and submitted an offer of composition before 
adjudication. A meeting of creditors was held, at which a 
large majority, both in number and amount, agreed to ac¬ 
cept the composition offer of 21 per cent. The Referee cer¬ 
tified the facts to the presiding Judge without recommen¬ 
dation. Objections to the confirmation of the composition 
were filed by a number of creditors upon the ground of 
fraudulent concealment of assets on the part of the bank¬ 
rupt. While the application for confirmation, with the 
objections thereto, was pending, A. L. Dasher, Jr., and W. 
D. McNeil, representing the Macon Shoe Company, et al, 
filed an application for a Receiver, reciting the history of 
the bankruptcy cause up to that time, and alleging that 
Harris had sold a short time before his bankruptcy a large 
stock of merchandise in a business which he conducted in 
Atlanta, and had not accounted in any way for the pro- 


167 


ceeds; that he was concealing, and had concealed, his assets; 
that he had made preferential payments at a time when he 
knew he was insolvent; that his books and records were im¬ 
properly kept; that he had misrepresented his condition to 
his creditors, and as result of his concealment of his true 
condition and his misrepresentation the creditors had been 
induced to accept the offer of composition; that it was nec¬ 
essary for the appointment of a Receiver in order that the 
assets might be protected, and that creditors might have an 
opportunity to investigate and ascertain the true condition 
of the bankrupt. 

Upon this application, after considering evidence and the 
testimony taken before the Referee, Judge Speer appointed 
George F. White, Marshal, as temporary Receiver, and di¬ 
rected him to take charge of the assets of the bankrupt, the 
Court by order giving to the defendant leave to apply for a 
modification or cancellation of the order appointing the tem¬ 
porary Receiver on five days notice. The Receiver applied 
for leave to employ counsel, representing that Harris had 
sold a business conducted by him in Atlanta of considerable 
value immediately prior to the filing of the petition in bank¬ 
ruptcy, and that the bankrupt had testified before the 
Referee that he had no books or other records in connection 
with this business or showing disposition of the proceeds 
thereof. Upon this petition, and by request of the Receiver, 
Judge Speer authorized the receiver to employ counsel and 
he employed W. D. McNeil. 

Judge Speer declined to confirm the offer of composition 
in advance of adjudication, upon the ground that the cir¬ 
cumstances surrounding the failure were so suspicious that 
creditors should have the full opportunity of examining the 
bankrupt at the creditors meeting before their rights should 
be concluded. The bankrupt was given, however, leave to 
renew the application to confirm the composition after 
adjudication should be had and the bankrupt should be ex¬ 
amined at the creditors meeting. 

An adjudication was had. Cook Clayton was elected 
Trustee by the creditors, and through Alexander Akerman 


168 


applied to the Court for leave to employ counsel, requesting 
the designation of Mr. Akerman and Mr. Arthur L. Dasher, 
Jr., as such counsel, and the authority was accordingly 
given. The Trustee applied for leave to sell the stock of 
merchandise of the bankrupt. The order was granted after 
proper notice, and the stock was sold, the highest bidder 
offering $9,000. Harris, through his counsel. Miller & Jones, 
objected to the confirmation of this sale, upon the ground 
that no final action had been taken upon his application for 
composition. The attorneys for the Trustee submitted a 
bid for the merchandise on behalf of the Macon Shoe Com¬ 
pany, raising the bid of the purchaser at public sale by some 
$3,000, this bid being conditioned, however, upon the dis¬ 
missal by the Trustee of the exceptions to the report of the 
Master in the Equity case of Henry vs. Harris. This propo¬ 
sition was objected to by Harris, the bankrupt, and a num¬ 
ber of his creditors, upon two grounds: First, that creditors 
had had no notice as was required under the Bankruptcy 
Act in order to settle disputed claims; second, upon the 
ground that the amount offered was not commensurate with 
the value of Harris' equity in the property involved in the 
Henry-Harris litigation. Harris further objected upon the 
ground that his offer of composition had not been finally 
acted upon. The purchaser at public sale insisted that he 
had a right to the property, and that the sale to him should 
be confirmed. 

Judge Speer refused to authorize the acceptance of the 
offer of the Macon Shoe Company, and referred the question 
of confirming the public sale of the stock to the Referee. 
The purchaser voluntarily raised his bid to $10,200, and the 
sale of the merchandise was confirmed at that figure. 

The Trustee was made a party to the equity cause, and 
Mr. Akerman, representing the Trustee, agreed with Mr. 
McNeil, representing Henry, on a settlement of the equity 
case upon the payment by Henry of $4,700 in addition to 
the original contract price of $36,000. Mr. Akerman pre¬ 
sented this application to Judge Speer, with an order that a 
meeting of creditors be called to consider the question. 


169 


Judge Speer declined to sign the order as prepared, stating 
that he did not think the question of the Trustee’s rights 
in the pending litigation should be submitted to creditors 
as they were not advised of the value of the property, would 
not understand the legal questions involved, and were not in 
position to intelligently act in the matter. He stated, how¬ 
ever, that he would prepare an opinion and some appro¬ 
priate order on the' application. Mr. Akerman advised Mr. 
McNeil that Judge Speer would probably decline to grant 
the application. Thereupon, Mr. McNeil went to Judge 
Speer, and withdrew the offer of settlement, giving as his 
reason that he did not wish the Court to file an (opinion in 
the case. Before Mr. McNeil’s visit. Judge Speer had 
already prepared an opinion, in which he declined to pass 
an order submitting the proposition of settlement to the 
creditors. When Mr. McNeil withdrew the offer of com¬ 
promise, this opinion was sent by Judge Speer to the Macon 
News for publication, the purpose being to acquaint the 
creditors of Harris with the true situation and their inter¬ 
est in the property. By appropriate order Judge Speer also 
directed the employment of Malcolm: D. Jones, of Miller & 
Jones, who had represented the bankrupt in the entire liti¬ 
gation with Henry, both in the State and Federal Courts, 
and who had prepared the exceptions to the Master’s report, 
to assist the counsel for the Trustee on the trial of these 
exceptions in the equity case. 

When the equity case came on for a hearing, attorneys 
for Henry filed an affidavit of disqualification under Sec¬ 
tion 21 of the Judicial Code, th*e affidavit being based on the 
publication of the opinion in the Macon News above refer¬ 
red to. In an opinion published sub nomine Henry vs. Har¬ 
ris, et al, 191 Federal, 868, Judge Speer held the -affidavit, 
which did not allege personal prejudice or bias, insufficient. 
He also reviewed at some length the history of the litiga¬ 
tion, the reasons which actuated him in declining to approve 
the several terms of settlement which had been proposed 
and his motives in publishing the opinion in the Macon 
News. It is this opinion to which Mr. Akerman takes ex- 


170 


ception in his testimony on page 1102 of the printed record, 
but it is submitted that the facts of the case fully justified 
whatever criticism the opinion may contain of the con¬ 
duct of Mr. Akerman as one of the counsel for the Trustee, 
and that the opinion itself is a complete answer to every 
suggestion of improper conduct on the part of Judge Speer 
in connection with the case. 

Judge Speer having declined to disqualify in the case, 
and the exceptions to the Master’s report being regularly 
assigned for hearing, the Judge directed the counsel to pro¬ 
ceed. Counsel for the complainant, Henry, declined to pro¬ 
ceed with the cause, and the Court thereupon dismissed the 
case for want of prosecution. 

To the order dismissing the case an appeal was taken to 
the Circuit Court of Appeals, and a petition for mandamus 
was filed by Henry for rule against Judge Speer to require 
him to send the affidavit of disqualification filed by Henry in 
the equity case and the proceedings thereon to the Senior 
Circuit Judge and to desist from retaining or exercising 
further jurisdiction in the cause. Before the trial of these 
proceedings in the Court of Appeals, Mr. Akerman with¬ 
drew from the case, and Judge Andrew J. Cobb was 
employed to succeed him as counsel for the Trustee. 

The Court of Appeals denied the petition for mandamus, 
holding the affidavit of disqualification insufficient, and that 
it was the duty of the trial Judge to pass upon its sufficiency. 

Henry vs. Speer, Judge, 201 Federal, 869. 

The Court of Appeals reversed Judge Speer on the main 
case, holding that the findings of a Master in Chancery are 
prima facie correct, and that the burden of sustaining excep¬ 
tions, where the finding was in favor of complainant, rests 
on defendant, and the Court was not warranted in dismiss¬ 
ing the case for want of prosecution without considering 
and disposing of these exceptions. 

The case being reinstated .in the District Court, some 
question was raised as to the jurisdiction of the Court, it 
being suggested that the complainant, Henry, before the 
bringing of the suit had made a bniding contract to sell the 


171 


property to Neel, a resident of Georgia. As jurisdiction 
had been entertained on the ground of diverse citizenship, 
this raised a question as to the jurisdiction. While- this 
question was under consideration, propositions for settle¬ 
ment were renewed. Henry offered to pay $14,000 in addi¬ 
tion to the contract price. The Trustee agreed to recommend 
the acceptance of $28,000 additional. With these proposi¬ 
tions pending, the case was called, and the Court inquired as 
to the probability of reaching a settlement. The respective 
offers of the parties were stated. Judge Speer then sug¬ 
gested that the difference be split and that a decree be taken 
settling the case upon the payment by Henry of $21,000 in 
addition to the original contract price. This was agreed 
to by all parties, a consent decree taken, by which it was 
provided that the property should be sold by the Trustee as 
a part of the bankrupt’s estate, and that all over and above 
the amount agreed to be paid by Henry should be paid over 
to him, or to the parties to whom he had sold. The property 
was sold, and was bid off for $66,000. Subsequently, Mur- 
phey, by whom the property was bid in, is reported to have 
sold to the Citizens National Bank for a commission of 
$7,500. This, however, had nothing to do with the admin¬ 
istration by the Court, but was a mere private transaction 
with which the Court was in no way concerned, and about 
which it was not advised. 

The total amount realized from Harris’ estate, as shown 
by the report of the Trustee, was $78,842.75. Out of this 
sum mortgages on the property aggregating approximately 
$40,000, were paid, and after paying the costs and expenses 
of the litigation the balance will be paid to the unsecured 
creditors of the bankrupt, less the bankrupt’s exemption of 
$1,600 which has been allowed. The unsecured credit¬ 
ors, who were offered 21 per cent, by the bankrupt, hafve 
already been paid 35 per cent., and the funds in hand will, 
pay an additional 12 per cent. 

The total fees paid to attorneys for petitioning creditors, 
for the bankrupt, for the Receiver and the Trustee amount¬ 
ed to $6,100. These fees were fixed by a Special Master, 


172 


according to the usual pr'^actice in this District; no excep¬ 
tions were filed. The original bill for specific performance 
was filed October 23, 1909, the involuntary petition in bank¬ 
ruptcy March 27, 1911. The final decree in the equity cause 
was passed on April 5, 1913, and the consent order under 
which the Trustee disbursed the proceeds of the sale was 
dated May 22, 1913. There are several issues in the bank¬ 
ruptcy case yet undisposed of, and the services of counsel 
have not yet ended, though their fees have all been paid in 
full. 

Harris, the bankrupt, in a long written statement criti¬ 
cises the conduct of Judge Speer in this case. On cross- 
examination it appears that the following are his specific 
complaints: 

1: That Judge Speer refused to confirm the composition 
of 21 per cent., though the same had been accepted by a 
large majority, possibly 90 per cent., of the creditors. See 
printed record, page 1037. 

2: That Judge Speer appointed Malcolm D. Jones, one 
of Harris’ attorneys, to represent the Trustee in the Henry 
vs. Harris equity case. See printed record, page 1044. 

3: That Judge Speer approved the settlement by which 
Henry paid $21,000 over the contract price, instead of di¬ 
recting the Trustee to continue the litigation. See printed 
record, pages 1044 and 1046. 

He also thinks the compensation paid attorneys was ex¬ 
cessive, and that the attorneys and officers employed were 
favorites. 

The results, accomplished show that Judge Speer was un¬ 
questionably right in refusing to confirm the compensation. 
The offer was 21 per cent. Creditors will receive 47 per 
cent. Besides, there were grave charges of concealing 
assets, filing fictitious claims, misrepresenting his true con- 
•dition, and failing to keep books, lodged aganst the bank¬ 
rupt, which of themselves would have justified the Court in 
refusing to confirm the composition. The offer of composi¬ 
tion took no account of Harris’ equity in the law suit, from 
which $21,000 was realized for the creditors. 


173 


The employment of Malcolm D. Jones to represent the 
Trustee was manifestly proper. He had represented Harris 
in all litigation over the Henry contract. He prepared the 
exceptions to the Master’s report, and surely no one was 
better qualified to sustain these exceptions than he. Messrs. 
Akerman and Dasher, who represented the Trustee, had no 
faith in their ability to sustain these exceptions, and had 
recommended the dismissal of the exceptions upon the pay¬ 
ment of $3,000. They could hardly be expected to wage a 
winning fight, and needed assistance. Harris, himself, until 
his composition was finally declined, was more anxious than 
any one that these exceptions should be sustained. 

The third criticism, that the Court authorized the settle¬ 
ment for too small an amount, coming from the source that 
it does, is not entitled to much consideration. It was wholly 
immaterial to the bankrupt what the property brought. The 
Court, by refusing to authorize the settlement proposed by 
the Trustee and recommended by Messrs. Akerman and 
Dasher, had succeeded in realizing a sum more than double 
the amount which would otherwise have gone to the unse¬ 
cured cerditors. Harris estimated the building as being 
worth $70,000 to $75,000. It brought on public sale $66,000. 
Surely, the settlement of the contest over the title to this 
property, with a Master’s report against the contentions of 
the Trustee, for $57,000, especially where all parties at in¬ 
terest consented, can hardly be considered a very bad settle¬ 
ment or a grave abuse of judicial discretion. 

The statement that the estate was frittered away in attor¬ 
neys’ fees paid to favorites is unsupported by the facts, the 
total amount paid being less than 10 per cent., and the serv¬ 
ices being of unusual value and extending over a period of 
more than four years, involving a great deal of time and 
attention, the cases in their different ramifications being 
complicated and the issues numerous. 

The suggestion that the officers and attorneys were 
favorites is likewise not borne out by the facts. The Re¬ 
ceiver was United States Marshal, and the Bankruptcy Act 
expressly authorizes the appointment of a Marshal to take 


174 


charge of the estates of bankrupts. The Trustee, while a 
friend of the Judge, was elected by the creditors. Messrs. 
A. L. Dasher, Sr., and A. L. Dasher, Jr., represented 'the 
petitioning creditors, and were paid the largest fee. The 
bankrupt was represented by Miller & Jones. There is cer¬ 
tainly no suggestion anywhere in any of the testimony de¬ 
livered before the Committee that any of these attorneys 
was a favorite of the Court. W. D. McNeil, whose wife is 
a distant cousin of Judge Speer, filed the petition for the 
appointment of a Receiver, and was employed by the 
Receiver as his counsel. As the Court declined every propo¬ 
sition submitted by Mr. McNeil or his client, and as Mr. 
McNeil felt sufficiently aggrieved to file an affidavit of 
prejudice on the part of the Judge against his client, it can 
hardly be said that he was playing the role of a favorite in 
this matter at least. Mr. Akerman was greatly aggrieved 
because the Court declined to approve the settlement which 
he recommended, and thought the Court’s opinion as pub¬ 
lished in the Federal Reporter was a serious reflection upon 
his professional integrity. (Stenographic Report, p. 1102.) 
Malcolm D. Jones was not a favorite, and the propriety of 
his appointment to represent the Trustee is manifest. After 
the retirement of Mr. Akerman from the case Judge Cobb 
was appointed to represent the Trustee on the appeal in the 
Circuit Court of Appeals and to resist the petition for 
mandamus against Judge Speer. The only counsel for the 
Trustee then were Arthur L. Dasher, Jr., attorney for peti¬ 
tioning creditors, who had concurred in the several recom¬ 
mendations of Mr. Akerman for the settlement of the equity 
case, and Malcolm D. Jones, attorney for the bankrupt. 
Surely the Trustee, on the important issues pending in the 
Court of Appeals was entitled to unbiased counsel not other¬ 
wise connected with the litigation. 


175 


HECHT VS. JOSEPH DRY GOODS COMPANY. 

Criticisms of Geo. S. Jones. 

In this case again Judge Speer most respectfully refers 
the Committee to the record and his opinions filed October 
25th and November 6, 1902, which fully set forth the 
grounds and which seem to make his action inevitable. 

The bill contained an application for injunction and the 
appointment of a Receiver. The Code of Georgia, Section 
5479, on this topic, provides: 

“Under extraordinary circumstances a Receiver 
may be appointed before and without notice to the 
Trustee or other person having charge of the assets, 
the terms on which a Receiver is appointed shall be 
in the discretion of the Chancellor.” 

There is a strong line of decisions to the effect that the 
Courts of the United States may utilize remedies provided 
by State laws. If, however, this is not deemed applicable 
it is submitted that the Georgia rule does not substantially 
vary from the general rule in equity in such matters. 

Adolph Joseph, the defendant, was already debited in the 
commercial world with five failures. The bill was filed by 
Olin J. Wimberly, one of the most accomplished equity law¬ 
yers the State has ever known. With him was Hon. John I. 
Hall, formerly under Mr. Cleveland’s administration an 
Assistant Attorney General of the United States, an ex- 
Judge of the Superior Court, and for many years before his 
death the Division Counsel of the Central Railroad, and 
General Counsel of the Georgia Southern and Florida Rail¬ 
way Company. The bill itself was most carefully and fully 
drawn. The equity of the complainant was fully set forth. 
The correctness of his demands was not in dispute. A nota¬ 
ble averment was that six weeks before the bill was filed the 
stock of merchandise of the Joseph Dry Goods Company, in 
which the plaintiff’s equity existed, insured for the sum of 


176 


$32,500, “caught fire'’; that Joseph collected $23,500 in cash 
from the insurance companies, and that he was rapidly sell¬ 
ing the remainder of the merchandise as a fire damaged 
stock, and was rapidly converting it into money; that the 
sales had already amounted to $11,000; that it was a sacri¬ 
fice sale, and the newspaper advertisements of the sale 
were annexed which showed these facts. It was alleged that 
from the proceeds of the stock‘he had paid a large debt 
owing by his concern to one Samuel Evans, amounting to 
$14,000; that the corporation of the Joseph Company on 
which the plaintiff had his claim, was practically dissolved, 
and yet Joseph was incurring fresh liabilities to the irre¬ 
parable injury of the plaintiff; combination and conspiracy 
was charged. While all of this was true, as alleged, Joseph 
had on hand a large sum arising from the insurance and 
the sacrifice sale, and he persistently refused to pay the 
plaintiff; that Joseph was a man who had at numerous 
times failed for large sums of money; that he was wholly 
unsafe to be trusted with the funds of others; a wild and 
reckless speculator in cotton and that such speculation was 
responsible for his periodical disasters, and was now using 
money liable to the plaintiff’s demand to indulge in specula¬ 
tion ; that he had refused to the plaintiff the opportunity to 
inspect his books or to give him any information about the 
business. 

The bill alleges 

( That said threatened and intended wrongs un¬ 
less immediately prevented by the protection of said 
property through the -appointment of a Receiver will 
greatly and irreparably injure your orator, and will 
result in the loss and destruction of his security 
rights, title and interest held by your orator as here¬ 
in before stated.” 

The prayer was for the appointment of a Receiver to rro- 
tect, take charge of, hold and preserve all the property of 
the Joseph Dry Goods Company and the books and papers 

The second prayer was as follows_ 


177 


and for as mlich as the danger is immediate and 
the consequences will be irreparable, your orator 
prays that the Court appoint at once a temporary 
receiver to take charge of, preserve, and keep the 
moneys and other property, and the books and other 
papers of the said Joseph Dry Goods Company until 
a hearing can be had/' 

The Court required the plaintiff to give bond and pro¬ 
vided for the earliest possible hearing. Two days there¬ 
after on motion of Mr. Jones, and his associates, the order 
was modified restoring all assets, except the money in hand, 
to the respondent. The Receiver was required to give bond. 
He was a man of the highest character, Mr. W. J. Grace, 
the brother-in-law of the witness, Mr. Jones, and after¬ 
wards Solicitor-General of the Circuit. 

It is true that the Court suggested that the case should 
be settled, and when asked to do so by Mr. Roberts, leading 
counsel for the respondent, intimated the amount of the 
allowance that would be made in case a settlement was 
effected. 

It may be true that the Court spoke to Mr. Jones of th!e 
habit of such great lawyers as Linton Stephens, Robert 
Toombs, and Benj. H. Hill, to settle litigation when they 
could. Jones had been a law student of Judge Speer and 
nothing more than a kindly admonition was intended. This 
w^as said in the privacy of his study at his home and in the 
presence only of one or two of the counsel. 

As it will appear from the record the counsel for both 
sides had not only been in conference for the purpose of a 
settlement, but apparently took the suggestion of the Court 
on this line in good part and promised to consider the mat¬ 
ter. Instead of doing this, and while the hearing was still 
pending, Mr. Jones applied to the Circuit Judge for an order 
of appeal from the decree appointing the temporary re¬ 
ceiver. He had previously made application to Judge Speer. 
It does not appear that he informed Judge Pardee that the 
latter application was pending. When the case came before 
the Circuit Court of Appeals, that Court, while reversing 
Judge Speer, closed its opinion in the following language: 


178 


‘‘On an appeal like this from an interlocutory 
order appointing a receiver, the Appellate Court may 
dispose of the case on its merits and dismiss the hill, 
(Smith vs. Vulcan Iron Works, 165 U. S., 518) but 
we do not understand that it is required to do so. 
The record shows, and it was admitted in argument 
at the bar, that Joseph is indebted to the plaintiff, 
though not in so large a sum as claimed,—a debt 
which in duty cmd good conscience he should 
We are reluctant to dismiss the bill when the plaintiff 
may be able to so amend it as to obtain some of the 
relief for which he has prayed. While the bill in its 
present form should be dismissed for want of juris¬ 
diction, we do not hold that it may not be so amended 
as to avoid the objections to it.’’ 

Hecht vs. Joseph, 120 Fed., 760. 

Mr. Jones testified that Joseph afterwards settled the 
debt of the plaintiff. 


GIBSON VS. HILL. 

On May 1st, 1911, John Gibson, under indictment for burg¬ 
larizing a postoffice, filed a verified petition in the United 
States District Court setting up that he was arrested near Cor- 
dele, Ga., and had employed Mr. J. T. Hill, an attorney at 
law of Cordele, to represent him, and had paid him $75.00. 
According to his petition, Mr. Hill was given a check on a 
bank in Kentucky and when the check was paid, Mr. Hill 
agreed to give him $25 out of the proceeds, thus making the 
fee of Mr. Hill $50. The petition further set up that a pre¬ 
liminary hearing was had before a United States Commis¬ 
sioner at Albany, but that Mr. Hill did not appear and rep¬ 
resent him at that hearing, and that later when in jail he 
had requested Mr. Hill to assist him in getting a bond, which 
Mr. Hill also failed to do, and the petition further averred 
that Mr. Hill rendered him no service whatever as an at¬ 
torney, and had failed to pay him the $25. which he was en¬ 
titled to out of the proceeds of the check given to Mr. Hill. 
A rule nisi was issued requiring Mr. Hill to show cause why 



179 


this sum should not be refunded to John Gibson. Gibson 
had in the meantime employed Mr. W. D. McNeil to repre¬ 
sent him in the burglary case. The rule nisi was made re¬ 
turnable on May 3rd, but the burglary case referred to was 
on trial and the hearing of the rule against Mr. Hill was 
postponed until that case had been concluded. Mr. Hill then 
filed an answer, which the Committee will have before it. 
On the hearing evidence was taken and Judge Speer an¬ 
nounced from the bench (Stenographic Record, p. 774) : 
‘H am inclined to think that Mr. Hill would be entitled to a 
retainer of one-half of the amount paid, but that as he did 
not render the services he ought to have paid back the other 
half to his unfortunate client. If he will do that, I will 
have no further order in the premises.’’ 

The Code of Georgia, Section 4953, provides: 

“Unless otherwise stipulated, one-half of the fee 
of any cause is a retainer, and due at any time, 
unless the attorney, without sufficient cause, aban¬ 
dons the case before rendering services to that value; 
but in cases where he has rendered such service and 
cannot render the balance of service—from the act 
of his client, providential cause, election to office, 
or removal out of the State,—he is entitled to re¬ 
tain the amount, or a due proportion, if collected, 
or sue for it and collect it, if not; where no special 
contract is made the attorney may recover for the 
services actually rendered.” 

Judge Speer thought, under this section, that Mr. Hill 
was entitled to retain one-half of the amount paid him by 
Gibson as a retainer. Gibson had just been sentenced and 
had been, or was, about to be sentenced to the penitentiary 
for a number of years. Mr. Hill, according to his own tes¬ 
timony, had rendered very little, if any, service to his client. 
Judge Speer thought a suggestion to Mr. Hill would be suf¬ 
ficient to cause him to pay this small amount to his unfor¬ 
tunate client. Mr. Hill, however, did not take this view of 
it, and through Mr. J. R. L. Smith, his attorney, who was 
also a witness before the Committee, rudely replied, “He 
won’t do that.” 


180 


Then, according to the record, page 774, Judge Speer re¬ 
marked : 

'Then I will adjudge him in contempt, and direct the 
Marshal to take— 

Mr. Smith interrupted the Judge by saying: 

‘T mean, your Honor, he won't do that without an order. 
I understood your Honor to say that if it was paid you 
would not take further orders." 

Judge Speer replied: 

‘T misunderstood you, I will have to order him to do it. 
I prefer not to do that, I want to give him an opportunity." 

No order was in fact signed, and on the following Mon¬ 
day morning. Judge Speer stated that he was not altogether 
satisfied with the evidence and directed a re-hearing. No 
effort was made to have a re-hearing, probably due to the 
fact that Gibson was sent to the penitentiary and was not 
available as a witness. 

Thereafter, Judge Speer wrote a letter to Mr. Hill, dated 
Highlands, N. C., September 1, 1911, in which he says: 

‘T also enclose an order setting aside my decision in the 
rule brought against you by Mr. W. D. McNeil at the in¬ 
stance of John Gibson, in which I had granted a re-hearing. 
Mr. McNeil has not thought proper to press the matter, and 
I am very glad to believe that my original opinion, which, 
however, was never confirmed by an order, was erroneous 
and that injustice was done you. I regret this very much, 
but make the only reparation I can under the circum¬ 
stances." (Stenographic Record, page 779.) 

Mr. Hill says (Stenographic Record, page 789) : "Since 
that time I have had occasion to practice in Judge Speer's 
court on one or two occasions, and have had courteous 
treatment." 

Mr. Hill also testified that he did not raise the question 
of jurisdiction, "feeling that when the facts were investi¬ 
gated, I would be exonerated from any such charge." (Sten¬ 
ographic Record, p. 781.) 

Under the law of Georgia, Section Ga. Code, 4954: 

"Where attorneys retain in their hands the money 


181 


of their clients, after it has been demanded, they are 
liable to rule (and otherwise) as sheriffs and incur 
the same penalties and consequences/^ 

The petition in this case was filed by Gibson through his 
attorney, W. D. McNeil, now State Senator from this Dis¬ 
trict, and Mr. McNeil evidently believed that the court had 
jurisdiction under this section of the Code of Georgia, par¬ 
ticularly as it was alleged that a part of this money was 
held in trust by Hill for Gibson, in addition to the amount 
paid by him as a fee. 


THE CASE OF DEPUTY MARSHAL KELLY. 

Col. J. W. Preston criticized Judge Speer for what he 
denominated partial conduct in this case. That the wit¬ 
ness’ recollection of the case, which was tried twenty years 
ago, is far from accurate, is shown when his criticisms in 
the light of the record are considered. He first stated that 
Judge Speer had dominated the jury, and practically com¬ 
manded a verdict. (Stenographic Record, p. 458 and 460.) 
On his attention being called to the fact that the case was a 
habeas corpus tried before the Judge without a jury, he 
stated that Kelly and his posse were guilty of murder, the 
nature of the proceeding and the details he had evidently 
forgotten. (Stenographic Record, p. 467.) 

The case was an outgrowth of the celebrated Dodge land 
litigation, which in one form or another and with its various 
ramifications, has been pending in the Southern District of 
Georgia during the entire judicial career of Judge Speer, 
the original bill to quiet the title to the Dodge lands, com¬ 
prising three hundred thousand acres lying in five coun¬ 
ties, having been filed prior to Judge Speer’s accession to the 
bench. This litigation in extent, in the variety of questions 
raised, in the beneficial results accomplished, is scarcely 
without a parallel in the annals of the Courts of the coun¬ 
try, and it is significant that notwithstanding the bitterness 



182 


with which many of the issues have been fought, the large 
number of parties and the vast interests involved, the great 
number of counsel who at one time or another, and in one 
branch or another, have been engaged in the litigation, no 
litigant or attorney, save Col. Preston, has criticized any 
ruling of the Court or the conduct of Judge Speer in his 
handling of the complicated and grave issues involved. It 
is submitted that this litigation of itself is a monument to 
the presiding Judge and a sufficient refutation of most of 
the accusations which have been brought against him. 

As a result of the decrees and rulings of the Court, the 
title to the vast body of the Dodge lands, an empire in itself, 
has been settled and quieted. A gigantic conspiracy, par¬ 
ticipated in by hundreds of people, directed by a shrewd and 
capable attorney, and the Sheriff of one of the counties, 
which by forgery, fraud and violence, not stopping at mur¬ 
der itself, undertook to deprive the non-resident owners of 
these lands and to establish a sort of squatter sovereignty 
throughout the counties, was run down and crushed. A 
large section of the State has been rescued from virtual 
anarchy, and converted into a peaceable, law-abiding com¬ 
munity. Values of the lands, which were wholly unsalable 
on account of the defects and conflicts in the title, and the 
efforts of the conspirators, have been greatly enhanced. 
Towns and villages have sprung up in the midst of well 
tilled farms, where dwell a contented, prosperous and happy 
people. 

Kelly and a posse, acting in pursuance of the laws of the 
United States and inobedience of the orders of the Court, 
undertook to execute warrants for the arrest of Lucius Wil¬ 
liams, a notorious outlaw, and his sons. Their claim was 
that in making this arrest and in order to protect their own 
lives, they were forced to kill Williams, who had been 
charged with the highest crimes known to the law. They 
were charged with murder in the State Courts, and Judge 
Speer, on the authority in re Neagle, 135 U. S., page 1, and 
numerous other cases, released them. 

A vivid picture of the conditions which existed at the time 


183 


of the attempted arrest of Williams, and a glimpse at the 
litigation as it had progressed up to that time, is given in 
the oral opinion delivered by Judge Speer on the trial of the 
habeas corpus. It is reported in 68 Federal, 652, from 
which the following extract is taken: 


‘‘This case is the culmination of a tremendous liti¬ 
gation, irnposing for more than ten years tremendous 
responsibility, and tremendous anxiety upon this 
Court, resulting from the fact that years ago the 
Georgia Land and Lumber Company, of which Wil¬ 
liam E. Dodge was President, bought large bodies of 
land in this State, about which that company’s suc¬ 
cessors in title have been compelled to appeal to the 
Courts for protection. These lands were conveyed 
by that company to George E. Dodge, and by George 
E. Dodge to Norman W. Dodge. All of this appears 
from the record before the Court. These were resi¬ 
dents of the State of New York. A number of per¬ 
sons, residents of the State of Georgia, were charged 
with numerous acts of fraud and forgery, and vio¬ 
lence, with the purpose to deprive these non-resi¬ 
dents of the benefits of their investments in this 
State. This case had been brought before I had the 
honor of presiding in this Court, and was pending 
when I entered upon the performance of my judicial 
duties. It was, tried. The trial lasted through many 
days. It was thoroughly and ably argued, and fully 
considered. A final decree was rendered, sustaining 
the title of Mr. Dodge to every foot of this land. No 
appeal was taken from the decision of the Court. It 
was, therefore, final. The decree itself, in the 
further progress of litigation with other parties was 
carried before the Supreme Court of the State of 
Georgia, and that Court added its high sanction to 
the decision of this Court, and held that the decree 
perfected the title of Norman W. Dodge in every foot 
of land described in the decree and order of the 
Court, and in his deeds of title. The decree itself 
enjoined the defendants to that bill from interfering 
with the lands of Mr. Dodge. For a time the decree 
was obeyed. But finally a gigantic system of forgery 
of deeds and a fraudulent seizure of the land with 
the attempt to establish prescriptive titles, was 
begun. This was done at the instigation of, and by 


184 


Luther A. Hall, a party to the original case before 
this Court, and who had been expressly enjoined. 
The matter was brought to the attention of the Court, 
and in a trial lasting many days the character of this 
man’s conduct was investigated. The Court fou^^d 
him guilty and sentenced him for contempt of the 
decree to five months’ imprisonment in Chatham 
County jail. While in that jail, as it appeared from 
the evidence in the trial which ensued, he concocted 
a conspiracy for the murder of a most amiable, ex¬ 
cellent and valuable citizen, John C. Forsyth, the 
agent of Norman W. Dodge, who had been conduct¬ 
ing the litigation. 

“The conspiracy as the bill of indictment charged 
and the jury found, was to prevent and hinder Mr. 
Dodge from exercising the right to pursue his reme¬ 
dies in the United States Courts. The case is fully 
reported in 44 Federal Reporter. (U. S. vs. Hall, 44 
Fed., p. 864; U. S. vs. Hall et al., p. 883; U. S. vs. 
Lancaster, fg., 885, s. c., p. 896.) A number of per¬ 
sons took part in that conspiracy. Forsyth was mur¬ 
dered under circumstances of the most heinous, 
pathetic and pitiable character. At his quiet horne, 
and in the bosom of his devoted family, with his wife 
and children around him, after the evening meal, his 
brains were blown out by the hand of a hired assas¬ 
sin; and it appears in the testimony in the case at 
bar that the man Lucius Williams contributed $200 
to the payment of the assassins. A number of con¬ 
spirators were brought before the court. They were 
convicted and sentenced to various terms of impris¬ 
onment in the Ohio State Penitentiary, at Columbus, 
Ohio, most of them for life. 

“One of these men was Luther A. Hall, who in suc¬ 
cess at the bar, and ability and learning, particularly 
on the subject of ejectment, was somewhat notable. 

“Another was Wright Lancaster, the Sheriff of the 
very county in which this homicide was committed, 
about which this inquiry is pending. 

“Lucius Williams was not charged in that indict¬ 
ment with connection with the conspiracy, but it ap¬ 
peared on the trial of that case, that he had forged a 
number of the deeds which were used for the purpose 
of attacking the title of Mr. Dodge, in violation of 
the injunction of the Court, and the Court in its sum¬ 
mation of the evidence to jury, referred to that fact. 


185 


and some of the forged deeds taken from the record 
of that trial were introduced here. 

^‘Several years elapsed. The title of Mr. Dodge in 
the same lands was assailed by other parties. He 
filed a bill of peace against some three or four hun¬ 
dred defendants, alleging circumstances of trespass 
and wrong which he now insists claim the attention 
of the Court for his relief. In that case not one 
single contested question has yet been decided. It is 
pending before the Court. 

“Lucius Williams was a party defendant to that 
bill, and when the officers went to serve upon him the 
original writ of subpoena, he refused to accept serv¬ 
ice, and informed the officer in violent and truculent 
language that he had no respect for the Court and 
did not intend to accept service or obey its orders. 
Rules day came—the day on which he should have 
filed his answer. He made no appearance. In the 
orderly progress of the case, judgment 'pro confesso 
or judgment by default was taken against him. No 
injunction had been granted when the bill was ori¬ 
ginally filed. After service of subpoena upon him, 
he then proceeded, as the Court was. advised by the 
sworn petition of the plaintiff, to run off his hands, 
cut trees across his tramway, and otherwise threat¬ 
ened violence to his agents and employees. But, 
even then, so careful was the Court to give him every 
right to which he was entitled, that only a rule nisi 
was issued against him to appear and show cause 
why he should not be enjoined from committing acts 
of violence or trespass pending the final determina¬ 
tion of the suit. When the young deputy went to 
serve the rule, he was met with a string of profanity 
which the Court will not repeat in this presence. 
The deputy was told if he ever attempted to serve 
any papers from this Court upon him, his life would 
be taken, and that if any officer of the Court came 
there to arrest him or his sons, it would be a ques¬ 
tion of whom could shoot first as to whom should 
live, Williams or the officer. Acts of violence were 
again committed which were brought to the attention 
of the Court by affidavits, and the Court this time 
issued an attachment for the arrest of Williams, to¬ 
gether with a rule nisi to show cause why he should 
not be punished for contempt. Two of the most con¬ 
servative and cool headed officers of the Court were 


186 


sent last fall to effect the arrest under the attach¬ 
ment. At a moment when Lucius Williams had laid 
aside his Winchester, the officers rushed upon him 
and arrested him, and slipped a handcuff on one of 
his wrists, and then ensued a scene of violence, 
struggle and resistance, and a display of indescriba¬ 
ble profanity and utter disregard of his own life on 
the part of this man, which the evidence in this case 
has disclosed and which has never been, I presume, 
exceeded on any occasion of that character. Finally 
Williams got out his knife, and although the officer 
held his pistol to his breast, told him he would kill 
him if he attempted to cut, the prisoner did not cease 
for one moment in his resistance to the officer, who 
finally, by a quick blow of the pistol, struck the knife 
from Williams’ hands. The officer was John A. 
Kelly, one of the relators. But runners had been 
sent out by Williams’ friends. They gathered in 
sympathy with this desperate man. The brave offi¬ 
cers proceeded a short distance with their prisoners, 
when they were surrounded by an armed mob with 
Winchesters, double-barrel shot guns and pistols 
levelled at them from every side. They were com¬ 
pelled to surrender their prisoner or lose their own 
lives. The officers, by their cool and brave discre¬ 
tion, and by a stratagem evaded the mob and re¬ 
ported the facts to the Court. The Attorney General 
sent a large force to arrest the parties who had res¬ 
cued Williams, but after the most strenuous efforts, 
owing to the remote and difficult country, and the 
impossibility of identification, the attempt failed. 
Only one man, a son-in-law of Lucius Williams, was 
identified and convicted. The injunction was yet of 
force with regard to this land. A short time there¬ 
after Mr. Dodge employed laborers to proceed with 
cutting the timber. Two or three men came to the 
land where the hands were at work, and one of them 
shot a poor innocent negro to death—a negro whose 
only offense was that he was standing on a log cutting 
at the obedience of a man who had employed him. 
He was shot through the body and died next day! 
Lucius Williams, in cruel and merciless language, 
boasted of the deed as his. The Grand Jury of this 
district, composed of men of high character, returned 
an indictment against Lucius Williams and his two 
sons for that offense. 


‘So notable had become this case that the Attorney 
General—the head of the law department of the Gov¬ 
ernment-issued a reward for the arrest of these 
parties, and other rewards were added by parties to 
the case. The officers, however, in the absence of 
such reward, had not ceased their efforts to accom¬ 
plish the arrest. But finally one of the prisoners at 
the bar, John A. Kelly, went to the neighborhood and 
remained there a long time—twenty-six days with 
but a short intermission. 

“Lucius Williams and his sons were in the woods. 
They were constantly seen armed to the teeth with 
shot guns, Winchester rifles and a large revolver. 
They had their retreat in the depths of Ocmulgee 
swamp. Lucius Williams made open declaration that 
if the officers attempted to arrest him, he would kill 
them. This was brought to the attention of Kelly in 
command of the deputies, three in all, but that officer 
did not cease in his effort to perform his duty. On 
the day of the homicide he was near and watching the 
house of one of the defendants in the murder case, a 
son of Lucius Williams, and he saw the three men 
armed as usual, approach the house. He determined 
to make the arrest, and in the effort to make the ar¬ 
rest the life of Lucius Williams was taken, and upon 
that act the issue now before the Court is formed.” 

Among the papers filed with the Committee is a pamphlet 
prepared by Hon. Walter B. Hill, then a member of the Ma¬ 
con bar, and afterwards Chancellor of the University of 
Georgia, containing a complete synopsis of the testimony 
and report of the decision of Judge Speer in this case, the 
pamphlet having been issued shortly after the trial was had. 
In his introduction Mr. Hill uses this expression: 

“It has always been my contention that no Judge 
should be condemned upon the representations of a 
losing party or his counsel. Unless such party or 
counsel has a grievance so manifest that he can in¬ 
duce some disinterested party to take it up, the curses 
of the dissatisfied litigant, however ‘loud and deep,^ 
will never hurt, and ought never to hurt the court 
against which they are uttered.” 


188 


It is only fair to Col. Preston to say, that while he criti¬ 
cised the conduct of Judge Speer in this case and also in the 
case of United States vs, Roberts, the postmaster who was 
convicted of defrauding the Government by the issuance of 
fictitious money orders and the sale of stamps, elsewhere 
referred to in this brief, that he stated that he had not the 
slightest ill will against the Judge and his estimate of him 
is as follows: (Stenographic Record, p. 169.) 

'‘Mr. Howard: State to the Committee your opin¬ 
ion of the distinguished jurist? 

“Mr. Preston: I have thought, with the exception 
of the matter indicated by what I have stated to this 
Committee, that in some respects Judge Speer was 
the finest presiding officer I have ever seen.’^ 

“Mr. Howard: You mean judicial officer? 

“Mr. Preston: Yes, sir, one of the finest I have 
ever known. His exalted intellect and his splendid 
manner on the bench always impressed me, but I did 
not take easily what I thought to be his imperious¬ 
ness, and sometimes I became very sassy to him, and 
he should have put me in jail once or twice, but he 
did not.’’ 


THE JOHN M. BARNES CHARGE OF ATTEMPTED 
BRIBERY. 

One of the charges announced by Mr. Clayton, Chairman 
of the Judiciary Committee, in his statement to the House, 
as appears from the Congressional Record, was “attempted 
bribery of officials appointed to act as custodian.” 

John M. Barnes, the Marshal who was removed for gross 
misconduct, to which Judge Speer called the President’s 
attention, is again relied upon as the witness to make out 
this charge. Barnes testified (Stenographic Record, page 
909) : “Somewhat about the last of 1901, as well as I can 
recall, I went to Judge Speer’s chamber to thank him for 
a little fee as custodian for a bankruptcy estate. But in 
thanking him I stated that I feared he had been too liberal, 



189 


whereupon he replied that people did not appreciate a man^s 
working for them for nothing, and that I had better make 
the most of these things. I then thanked him again, and 
before I could leave the room he detained me, and slowly 
said, ‘You thank me very beautifully for these things some¬ 
times, but what is there in it for me?’ I said (and the Com¬ 
mittee will remember how the witness extended both arms), 
‘Oh, millions. Judge, millions.’ ” 

Mr. Barnes, however, testifies that the Judge did not dis¬ 
continue appointing him custodian in bankruptcy cases. 
Mr. Barnes did not testify that he or any other receiver 
or custodian or other person within his knowledge had ever 
given Judge Speer directly or indirectly any part of the 
compensation allowed; he, indeed, testified directly to the 
contrary. No evidence of that character was produced, 
and no such evidence can be pardoned. 

Of course it is possible for this embittered and resentful 
man to attribute anything to the Judge who was obliged 
to ask his removal, especially if he locates the incident in 
the privacy of the Judge’s chamber. In his examination in 
Savannah, one of his counsel, Mr. Callaway, propounded 
this question to Judge Speer (Stenographic Record, page 
2524) : 

“Mr. Callaway: Judge Speer, Mr. Barnes, who was for¬ 
merly marshal of this district, testified that on one occasion 
you were paying him as receiver in some case, and that 
you said: ‘What is there in it for me?’ or, ‘What do I get?’ 
Do you recall making any such statement to Mr. Barnes at 
any time?” 

Judge Speer: “I recall a statement which Mr. Barnes 
may have construed that way, but he is very widely in error. 
Mr. Barnes is somewhat of a literary man, and he ought to 
recall what I said. When he came in to me, and I gave him 
this fee, which he said was a large one, I narrated an in¬ 
stance in the life of Lord Chatham, the first Pitt, when he 
was appointed paymaster of the forces. Previously it had 
been the custom of the paymasters to keep a large sum, say, 
500,000 pounds, deposited, and to collect interest on that 


190 


deposit and appropriate it to their own use. Pitt, when 
first appointed paymaster, discontinued that, and when 
some one commented on these large sume going through 
his hands and he getting no benefit from it, he held up 
his hands and said: ‘None of it sticks.^ Your Honors will 
find that in the life of Lord Chatham. That is what I said 
to Mr. Barnes, and is what his malevolent mind has con¬ 
strued to be an offer on my part to accept a bribe from him. 
You have heard what Mr. Akerman told you about Mr. 
Barnes, and his general character.’' 

Judge Speer was perhaps incautious in mentioning to a 
man of Barnes’ suspicious and ignoble nature this incident 
in the life of one of the greatest and most incorruptible of 
the English-speaking race. 

Of the vast sums paid out under his orders and decrees 
in the thousands of estates he has managed in his long 
career, Barnes is the only witness who has ascribed to him 
the slightest imputation of personal aggrandizement. Even 
if the statement of Barnes were true, the remark attributed 
by him to Judge Speer cannot fairly be construed into evi¬ 
dence of a corrupt purpose. If, however, the Committee 
will look to the record of the Department of Justice, showing 
the reasons which obliged Judge Speer to demand his re¬ 
moval from office, Barnes’ insults to the people of Valdosta, 
and elsewhere, copies of which, authenticated by Akerman, 
were placed before the Committee, his threats to assassinate 
the Judge, his going into court at Savannah with a large 
revolver buckled around him and conspicuously displayed, 
after furiously threatening to kill the Judge if he should 
from the bench rebuke him or his deputies for failure of 
duty (See the affidavits of George F. White, J. N. Talley, 
R. B. Middleton, Alexander Akerman and others), the 
criminal animus of the witness will be made plainly 
apparent. 

In estimating the value to be accorded the testimony of 
this witness, the Committee, it is respectfully submitted, 
should not disregard the letter to Judge Speer, written by 
Mr. Alexander Akerman on August 26th, 1904. In this he 


191 


refers to Barnes as “that earthly Embassador of his Satanic 
Majesty/^ Of Barnes’ statement that he had seen three 
Senators who had agreed to help him in his attack on Judge 
Speer, Akerman writes: 

“I am inclined to think that it is a piece of lying, 
pure and simple. Permit me to say that should he 
make any attack on you, and should you consider my 
professional services of any value, I will cheerfully 
resign my office in order to defend you.” 

In a letter of even date to the President, a copy of which 
Akerman enclosed to Judge Speer, he writes: 

“Those of us who have such high admiration for 
the ability and character of Judge Speer, and who 
hope to see him at some opportune time promoted 
to a broader field of usefulness, do not feel that 
we would be doing Judge Speer, or ourselves, justice 
to permit any slanderous statements in regard to him 
to go unchallenged, especially so when we consider 
that Mr. Barnes, during his lucid intervals is such a 
plausible talker as to be able to convince any one who 
does not know him, of the truthfulness of his state¬ 
ments. I do not know what charges Mr. Barnes may 
have made to you against Judge Speer, and there¬ 
fore am not in a position to refer to them, but I as¬ 
sure you that after a long acquaintance with Judge 
Speer, both as a member of the court and a member 
of the bar practicing before him, I have never ob¬ 
served anything in his public or private character 
that deserves anything but the highest commenda¬ 
tion from all right-thinking and law-abiding citi¬ 
zens.” 

Akerman then refers the President to the affidavits of 
many Georgia citizens of the highest character in regard to 
the conduct of the late Marshal Barnes: 

“a perusal of which would convince you that Mr. 
Barnes is either a very bad man, or that he is at 
times mentally unbalanced and utterly irresponsible 
for any statements he may make.” 


192 


“This letter/’ he adds, “is written without the consent or 
knowledge of Judge Speer who is absent on his summer 
vacation.” 

These letters appear on pages 1145-6-7-8-9 of the steno¬ 
graphic record. 

In reply to a question propounded by Mr. Howard, Mr. 
Akerman said: 

“That is my hand-writing, yes', I wrote that. That is in 
1904.” 

A casual perusal of the testimony of Barnes himself will 
bear out Akerman’s estimate of his character. He was in 
fact the only witness during the entire investigation the 
Chairman felt called upon to attempt to confine to specific 
facts. On page 907 of the stenographic record the Chair¬ 
man said: 

“Mr. Barnes, will you now come down to specific 
facts a little more?” 

On page 925: 

“The Chairman: I hope you will confine your¬ 
self to the facts as much as possible. Leave out as 
many collateral matters as possible.” 

Had the Committee gone into his character, or had Judge 
Speer been permitted to prove it, it would have been shown 
to be distinctly homicidal; that he had actually killed a cit¬ 
izen of Chattanooga, Tenn., and had been tried for his life; 
that on the first trial he was convicted and obtaining a new 
trial was acquitted; that it was his custom, as the evidence 
before the Committee will show, to threaten the lives of 
those persons with whom he was displeased; that he had 
frequently threatened Judge Speer’s life; that Judge Speer 
stated this to Attorney General Knox, and to President 
Theodore Roosevelt, and that Barnes was removed by an 
immediate telegraphic order; that he had threatened to kill 
everybody on the court room fioor in Macon; had expressed 
the desire to get a half dozen or more lawyers of the Bain- 
bridge bar together so that he could kill them all at one 


193 


time; that it was his custom to drive up to the court house 
in Macon, almost daily, with a variety of rifles and pistols 
in his buggy, and then betake himself to the country to per¬ 
fect his aim and quickness in handling arms, useful only 
for the destruction of human life. That he has verbally, 
and by letter, invited various persons to cross the state lines 
so that he might appropriately and without violation of the 
Georgia law, exchange cartels as preliminary to duels. 

Akerman testified (Stenographic Record, p. 1179) that 
Barnes threatened to shoot him and also gave him an 
invitation to the duello above mentioned. Barnes tes¬ 
tified that Judge Speer had him walking a tight-rope 
for seven years; and had the whole Marshaks force 
pulling up and down the window-shades in the court¬ 
room; that Judge Speer took an active part in politics, when 
in fact he has taken not the slightest part in such matters 
since he has been on the bench; that he was an active man¬ 
ager to have Judson W. Lyons, a colored lawyer of Augusta, 
elected National Committeeman over Henry Blun, of Savan¬ 
nah, in 1908, when in fact Judge Speer never mentioned, or 
even thought of Lyons’ candidacy. The last statement is 
so amazing and unfounded that Judge Speer begs to offer 
the Committee a letter voluntarily sent him by Judson W. 
Lyons, formerly Register of the Treasury, since Barnes^ 
testimony was given: 

1922 15th Street, Northwest, 
Washington, D. C., January 26, 1914. 

Hon. Emory Speer, 

Savannah, Ga. 

My Dear Sir: I have not seen it myself, but a friend tells 
me that he saw it published in the Atlanta Constitution that 
John M. Barnes, Esq., of Thomson, Ga., formerly United 
States Marshal, testified the other day before the Special 
Committee of impeachment, that you had been my cam¬ 
paign manager in 1908. This statement is so absurd and 
ridiculous that it is hardly worth while noticing, but as 
they seem to be endeavoring to magnify everything and dis¬ 
tort everything that they can possibly put their hands on 
against you, it might be well for me to say that never a 
word has passed between you and me about active political 


194 


affairs in the State of Georgia since I have been an active 
participant in politics. 

Very respectfully, 

JUDSON W. LYONS. 

Surely when the Committee has considered the appre¬ 
ciation of Barnes given in the letters of Akerman, and has 
looked to the intrinsical nature of his testimony, its swift¬ 
ness and maliciousness, and oppose to it the life record of 
Judge Speer, it will be disregarded altogether. 


USE OF DRUGS. 

As to the causeless, cruel and humiliating charge that 
Judge Speer is addicted to the use of drugs, it will suffice 
to say, in the language of a great newspaper published at 
Tampa, in Florida: “It has miserably failed.'' 

There is no proof whatever of the fact, and it has been 
refuted conclusively by two witnesses called by the Com¬ 
mittee. Louis Pellew, the druggist of Judge Speer and his 
family (Stenographic Record, page 576), and Dr. Wm. J. 
Little, the only physician called, a near neighbor who had 
frequently attended Judge Speer during sickness and in 
periods of great suffering, indeed anguish. Stenographic 
Record, page 610.) This high-minded and great physician 
testifies on page 611: “Judge Speer's mental condition 
when he is well is superb." Page 612: “I have never seen 
his mind affected in the least." “Page 614: “I have never 
had any acts of Judge Speer to suggest the drug habit 
to me." 

It may be added, also, that Dr. I. H. Goss, of Athens, who 
has attended Judge Speer at times for many years, and who 
was one of his physicians in his recent most severe illness, 
was in court. His presence was called to the attention of 
the Committee by Judge Speer's counsel, but he was not 
sworn. (Stenographic Record, page 590.) 

Mr. John R. L. Smith based his opinion that Judge Speer's 
mental faculties were impaired upon the fact that some time 



195 


last year, the Judge offered to sell this witness a horse, but 
it does not appear that Judge Speer offered to sell the horse 
on time. 


ALLEGED USE OF MESSENGERS, CRIERS, AND 
BAILIFFS AS SERVANTS OF THE JUDGE. 

Here also the witnesses relied on to show the alleged 
misconduct are Alexander Akerman and John M. Barnes. 
Both of these witnesses testify that the messenger, and 
certain criers and bailiffs performed no services for the 
United States but acted as personal servants for the Judge. 

If this charge is true, both of these men are guilty of 
malfeasance in office, and of presenting or certifying false 
accounts to the Government. The pay rolls of these officers 
are made out by the Marshal, and they are approved by the 
United States Attorney, or in the absence of the United 
States Attorney, by his Assistant. Barnes was Marshal 
for seven years after 1897. Akerman has been Assistant 
United States Attorney, in charge of the office, and United 
Statest Attorney, for about fourteen years. If these offi¬ 
cials allowed the practice to go on to which they refer, and 
made up and approved the monthly and quarterly accounts 
of the marshal, they are both subject to indictment. Their 
evidence on this subject is the grossest misrepresentation, 
and would only be given by men having the character por¬ 
trayed in the mutual opinions they express of each other. 
The testimony of the marshal, George F. White, and of Chief 
Deputy Henry G. Tucker, is that these officers performed 
all the services required of them, and that Judge Speer paid 
them for all personal services rendered him. The crier did 
not always open the court, though some criers did. It is 
the Georgia practice for the chief executive officer to open 
the court. In the State courts it is the sheriff, and in the 
United States courts, the Marshal. This distinction is 
usually desired by the Marshal. The crier is a statutory 
officer. Sec. 5, Judicial Code. The bailiffs are appointed 
by the Marshal. The messenger is allowed by the Attorney- 



196 


General. It is true that one of these officers usually made 
his home at Judge Speer’s residence. But this did not in¬ 
terfere in any way with his duties to the Government. Mr. 
White, the Marshal, testified that they attended court and 
performed the duties required of them. Take Mel McCoy, 
as an illustration. He has lived with the Judge for most of 
the time for many years. He has been at times crier, and 
at times messenger, and at times a bailiff. He has per¬ 
formed many duties for the Government, notably in guard¬ 
ing one Cooley, an important prisoner transported from 
Savannah to Indianapolis under the charge of complicity in 
the destruction by dynamite of the building of the Los 
Angeles, California, Times. The residence of McCoy at 
Judge Speer’s home promotes the business of the court. A 
great deal of judicial work is done there at chambers, in¬ 
terlocutory hearings are often had at the Judge’s residence, 
which is a mile and a half from the Government building. 
A large part of his library is kept there for these purposes. 
It is often essential to use this officer to send for attorneys, 
books or papers. In addition to this, more than once Judge 
Speer has been threatened by the criminal classes with 
whom he has had to deal, and at least once by an insane 
person. The Marshal has been instructed by the Attorney- 
General to afford him the necessary protection. There could 
be found perhaps no better friend in need than this un¬ 
pretending, but intelligent and courageous North Carolina 
mountaineer. This officer is entitled to a home somewhere, 
and if Judge Speer has thought proper to give him this and 
other advantages in consideration of his companionship 
and assistance, no one has the right to object. Nor is it 
discreditable to either party. 

Judge Speer’s relation to this officer appears, from his 
own testimony in the record, from page 2519 to 2521: 

“Now, take the case of Mell McCoy. Mr. Aker- 
man, in his statement to the Attorney-General, 
which has been furnished my counsel, stated that 
he was a good North Carolina man, but he could 
not learn to open court in five years. I don’t think 
that was just to a North Carolinian; particularly 


197 


as I myself am lineally descended from a Governor 
of North Carolina. He is really, while a plain man, 
a very intelligent, courageous mountaineer. 

“Mr. Callaway: Has Mell ever been a servant 
in your family? 

“Judge Speer: In a sense, no. He is more of a 
friend and companion than a servant. Mell is a 
horse-trader by profession. The Latin adage, 'gaudet 
in equis et canihus applies; he delights in horses and 
dogs. We hunt together, we ride together. I have 
given him his riding suit, and his leggings. He rides 
a rather finer horse than I do, because he is a younger 
man and can control him better. When the night¬ 
fall comes, Mell comes into my study and we sit there 
together and read the newspapers, and sometimes I 
read him novels, to his great delight. I was reading 
one to Mell by Chas. Neville Buck of the Kentucky 
mountains and feudist wars, when I left home. I 
believe it was called ‘The Battle Line,’ or something 
of that sort, and I hope to finish it with him when 
this trial is over. He is my companion and friend. 
I have given him his clothing for years. When his 
wife was sick and he was unable to pay her expenses 
at the hospital, I paid them for him. When he was 
with me in Athens, during my sickness, I paid his 
board and have the receipt for it, $40.00. When he 
got behind at the Reeves House, I paid that board 
for him, and have the receipt. I first got his boy 
admitted into the public schools. I have loaned him 
two or three hundred dollars at different times, and 
I never expect to ask him for the return of the 
loans.” 

He and his family were quite poor when Judge Speer 
first met them at Highlands, N. C., about thirteen years 
ago. His was a very hard life, and as the Judge has found 
him a faithful friend, it has given him great happiness to 
befriend him and aid his family. He is a valuable officer of 
the court. 

The Committee doubtless understands that criers and 
bailiffs are paid a per diem only on the days when court is 
open for business. The messenger is paid by the month, as 


198 


I understand it, he is intended to aid the Judge in every 
practical way that a messenger can in the performance of 
his iudicial duties. 


GEORGE S. MURPHEY. 

The witness testified (Stenographic Record, pp. 2120- 
2137) that he was sued in the United States Court at 
Augusta, Ga., by Springs & Co., Commission Brokers, of 
New York, on an account growing out of cotton future 
transactions which he had through plaintiffs while dealing 
in cotton futures on the New York Exchange. He did not 
dispute the correctness of the account, but defended on the 
ground that the consideration was a gambling transaction, 
and under the Georgia Statute was an illegal and immoral 
transaction. He complained first that his case was tried in 
the latter part of the summer before Judge Speer at Mount 
Airy, 270 or 300 miles froni Augusta, at heavy expense to 
himself, and second, that the Judge decided the case and 
rendered judgment against him for the full amount sued 
for, about $15,000, without permitting him to introduce 
any of his witnesses or testimony, and that on appeal from 
this decision to the Circuit Court of Appeals, Judge Speer 
was reversed, and subsequently, fearing to try the case 
again before Judge Speer, he agreed upon a compromise 
and a consent verdict in favor of plaintiffs for $5,000 and 
costs which was taken before Judge Foster at Augusta, in 
October, 1913. 

On cross-examination he practically admitted that the 
the case was called for trial by a jury, by Judge Speer, at 
Augusta, at the April term, 1911, of the court, and was 
postponed at the instance of counsel for both parties, be¬ 
cause neither side had completed the taking of their testi¬ 
mony in New York, and by consent of counsel the case was 
to be tried before the Judge without a jury at Macon dur¬ 
ing May, 1911, and the further postponement from Macon 
in May, because counsel had still not completed the taking 



199 


of testimony in New York. This second postponement, 
like the first, was at the instance of counsel, and not Judge 
Speer, and the trial at Mount Airy in the late summer was 
at the instance of counsel, and not the Judge. The Judge 
was entitled to his vacation, the court was not in session, 
and his consent to try the case at the time and place was 
an effort on the part of the Judge to oblige counsel, who, 
desiring a speedy trial of their case, should have been ready 
at the regular term in April at Augusta, or failing then, 
waited until the regular term in November. 

From the case as reported in 200 Federal, 372, it appears 
that the Judge struck the plaintiff’s plea and defense of a 
gambling or wagering contract on the ground that the de¬ 
fendant, in his answer admitted the allegations in plain¬ 
tiff’s petition of the rendering of a stated account showing 
the alleged indebtedness sued for and a promise on the part 
of the defendant to pay the same if given time. This having 
been done, there was nothing left for the court but to ren¬ 
der judgment for the plaintiff under the agreed submission 
of counsel. The entire conduct of the case and the Judge’s 
ruling is set forth in the report of the case in 200 Federal, 
372. The ruling was reversed, but it was a clean, clear-cut de¬ 
cision, and at worst only reversible error. The subsequent 
events, as testified to by Mr. Murphey, does not support his 
charge that after the reversal of the Court of Appeals, he 
compromised on a $5,000 verdict for fear of an unfair trial 
before Judge Speer. This compromise verdict was taken 
before Judge Foster in October, 1913, and Murphey testifies 
that he has neither paid the $5,000 compromise judgment, 
nor does he know of any property of his on which it can be 
levied, or out of which it can be collected, and the debt, 
even though compromised, remains unpaid. His reasons 
for fear therefore seem unsubstantial. 


200 


THE CHARGE OF UNLAWFUL AND OPPRESSIVE 
CONDUCT IN DEFYING THE MANDATE OF 
THE CIRCUIT COURT OF APPEALS. 

The only evidence on this subject is afforded by the tes¬ 
timony of A. A. Lawrence, and John Rourke, Jr., given at 
Savannah. This is that Judge Speer declined to make the 
mandate of the Circuit Court of Appeals in the case of 
J. B. Holst, et al. vs. Savannah Electric Company, the judg¬ 
ment of the Circuit Court. That case had been presented 
by a bill originally brought by J. B. Holst and seven others, 
citizens of Georgia. Later, Emma L. Carrington, a citizen 
of New York, intervened. It was to enjoin the defendant 
company from laying a track on a residence street in 
Savannah. Judge Speer originally entertained jurisdic¬ 
tion of the bill, not because of diversity of citizenship, but 
upon the theory that the case was one arising under the 
Constitution and laws of the United States. This appears 
from the following excerpt from his holding (131 Fed., 
p. 931): 

“The owners of property fronting on a street, may main¬ 
tain a suit in equity in a Federal court against a city and a 
railroad company, both of which are corporations of a state, 
to enjoin the laying of tracks in a street under a void en¬ 
actment by the city council purporting to be authorized by 
such act, where irreparable injury will result to their prop¬ 
erty, as a taking of property under color of authority from 
a state, without due process of law.’’ 

The Circuit Court of Appeals did not differ with Judge 
Speer upon the merits. This appears from the following 
extract from its opinion (132 Fed., p. 901) : 

“If it be true, as alleged in the bill, that the Mayor 
and Aldermen have passed an ordinance which, under 
the laws of Georgia, they had no right to pass, and 
the ordinance is void, and that the Electric company 
is trespassing on the property of the complainants 
or interfering with their property rights under the 


201 


authority seemingly conferred by the void ordinance, 
these wrongs undoubtedly confer a right of action on 
tne plamtiifs. But unless it appears from the aver¬ 
ment of facts in the bill in such form as is required 
by good pleading that the suit is one which involves 
a controversy as to a right which depends on the 
construction of the Constitution or some law of the 
United States, the jurisdiction cannot be maintained 
on that ground/’ 

That court also held that jurisdiction of the bill could not 
be maintained on the ground of diverse citizenship because 
it appeared that only one of the several plaintiffs was a non¬ 
resident. The Circuit Court of Appeals directed that the 
temporary injunction of the Circuit Court be dissolved and 
the decree of the Circuit Court be reversed, and that the 
cause be remanded. 

The bill in question was addressed to the Circuit Court of 
the United States for the Fifth Circuit. The address 
of the mandate was the samle. When the mandate was 
presented to the Judge, the Court was not only in vaca¬ 
tion, but he was in the Northern and not the Southern Dis¬ 
trict of Georgia. Opposing counsel were absent, and had 
no notice that the motion would be made. There was no 
consent that he should act at chambers outside of his district 
and make what would have been a final decree. This is 
made very plain by the testimony of Mr. John Rourke. He 
stated that when the mandate was received, early in 
November, he does not remember the date, he carried it to 
Judge Speer, who was then at his summer home at Mount 
Airy, in the Northern District of Georgia, and requested him 
to make it the judgment of the Circuit Court; that Judge 
Speer declined to grant the order requested, but dictated to 
him the following telegram to be sent to leading counsel, 
Osborne & Lawrence: 

‘The court in Savannah not being in session. Judge 
Speer does not feel at liberty to sign a judgment 
making the mandate of the Circuit Court of Appeals 
the judgment of the Circuit Court. Besides he 
wishes to hear counsel upon the question, has the 


202 


Circuit Court of Appeals jurisdiction to try an ap¬ 
peal involving the constitutional question in this 
case, and has not the Supreme Court of the United 
States exclusive jurisdiction? The court will con¬ 
vene at Savannah on the 28th instant. He would con¬ 
sider a signed consent to waive the question men¬ 
tioned.” 

This telegram purports to be signed by John Rourke, but 
that gentleman testified that it was dictated by Judge 
Speer. (Stenographic Record, page 1472.) 

It will be observed that Judge Speer offered to waive the 
question presented by this telegram on a signed consent of 
counsel. He doubtless had in mind section 5 of the Act of 
March 3, 1891 (26 Stats. L. p. 826). This provides for a 
direct appeal to the Supreme Court “in any case that involves 
the construction or application of the Constitution of the 
United States.” As this bill charged that the property of 
the plaintiffs was being practically taken from them with¬ 
out due process of law, and that, too, by the City of Savan¬ 
nah and the Electric Company, both of which were agencies 
created by the State law, it seemed to involve the relating 
clause of the 14th Amendment. On both grounds, there¬ 
fore, his hesitation to sign a decree, which would have been 
a finality, seems justifiable. If, however, he was in error, 
it was error only. It seems an ugly distortion of these facts, 
all of which appear from the record and the recited tele¬ 
gram, to charge Judge Speer with defying the mandate of 
the Circuit Court of Appeals. 

The November term of the court in Savannah soon con¬ 
vened, and on November 28th, the first day of the term, the 
bill was dismissed. In the meantime, another bill on the 
same subject-matter had been filed by a non-resident against 
the same defendants. Judge Speer, as was obligatory on 
him, issued a rule nisi returnable two days later, namely, 
on November 30th, and granted a temporary restraining 
order operative in the meantime. The bill last mentioned 
was heard and dismissed early in December. Certain it is 
that the non-resident plaintiff was entitled to have a hear¬ 
ing. The right of action had been distinctly recognized by 


203 


the Circuit Court of Appeals. Although Judge Speer did 
not put his original ruling on that ground, that court com¬ 
mented on the fact that there was no diversity of citi¬ 
zenship, and made this one ground of its ruling. This was 
altered by the second bill. This was drawn and presented 
by eminent solicitors in equity, and surely the non-resident 
plaintiff was entitled to the brief opportunity of hearing 
accorded. Although the second bill was promptly dismissed, 
it seems that Judge Speer gave offense to the Electric Com¬ 
pany, and Messrs. Osborne & Lawrence, because he accorded 
a hearing to a private citizen who challenged corporate 
power. 

The assertion, if true, that on the hearing of the peti¬ 
tion for injunction in the second case, that Judge Speer 
remarked to counsel that it was '‘a good case to settle,'' does 
not seem to be reprehensible, or even important. 


JUDGMENT FOR STENOGRAPHER'S COST. 

Gordon Saussy complained (Stenographic Record, p. 
1569) that in April, 1908, on the trial of the case of the 
United States vs. Atkinson, a criminal case where Mr. 
Saussy represented the defendant, he made a contract with 
Mr. A. H. Coddington, the court stenographer, to transcribe 
certain testimony in the case for his use, agreeing to pay the 
customary charges. After the testimony had been 
transcribed a disagreement arose between him and Ml*. 
Codington as to how much or what parts of the record had 
been ordered transcribed,—and not being able to settle the 
matter, Mr. Codington, the stenographer, filed a sworn peti¬ 
tion against Mr. Saussy, as a practicig attorney and officer 
of court, to collect his charges as stenographer for writing 
out the record at Mr. Saussy's request. Upon this sworn 
petition the Judge granted only a rule nisi. In response 
to this rule Mr. Saussy appeared before the Court and after 
considerable argument and discussion by Mr. Codington and 
Mr. Saussy, the Judge rendered the written decision 




204 


(Stenographic Report, pp. 1576-7) wherein it is recited that 
it appeared 

‘That the defendant in the criminal indictment 
has paid to Gordon Saussy, Esquire, the sum of $55 
for the purpose of discharging the stenographer’s 
costs for making a transcript of the evidence given 
on the first day of the trial.” 

Then, after stating the value of the services to be $55, the 
order directs said Saussy to pay over the said sum of $55 
to Codington, the stenographer. 

Mr. Saussy testifies that shortly afterwards, when noti¬ 
fied by the Clerk of the order or judgment, he paid it. But 
now, more than five years after the judgment was rendered, 
placed on the minutes, and paid by him, he questions the 
accuracy of the recitals therein that at the time of the hear¬ 
ing his client, Atkinson, had paid over to him the sum of 
$55 with which to discharge the stenographer’s bill. It 
might be sufficient to say that the recitals in the order jus¬ 
tify the judgment and that neither the correctness of the 
judgment nor the accuracy of the recitals therein can be 
collaterally attacked after payment and acquiescence therein 
for such a length of time. But even Mr. Saussy in his tes¬ 
timony before the Committee does not make it clear that the 
recital in the order was inaccurate. (See Stenographic 
Record, pp. 1577-8.) 

“Mr. Callaway: Did you see this judgment afterwards 
when you paid it did you not? 

“Mr. Saussy: Some time either the last part of April or 
the first of May, yes.” 

Again on page 1580 of the Stenographic Record in re¬ 
sponse to a question from the Chairman as to his contention 
as to the truth of the recitals in the order, he replies— 

“Mr. Saussy: That judgment partially speaks the 
truth, but not all the truth. I saw that judgment 
this morning for the first time. I notice on the book 
here that it says they sent me a copy. Mr. Johnson 
just told me he had a $61.50 order of Judge Speer’s 
and for me to come up and pay it.” 


205 


Mr. Saussy was equally as uncertain as to how much his 
client, Mr. Atkinson, had paid to him for the purpose of 
discharging this stenographer’s bill. He thinks (Steno¬ 
graphic Record, p. 1581) that it was somewhere about $30, 
but at the same time he admits that there was a difference 
between him and Atkinson, and that Atkinson had con¬ 
tended that he, Saussy, ought to pay a part of the stenog¬ 
rapher’s charges. At the bottom of page 1581, he says: 

“I am quite certain that I stated this to Judge 
Speer, that in the event he made this rule absolute 
the money would be paid. I don’t remember whether 
I said I would pay it, or my client would pay it, but 
that question came up, and I think I stated it in open 
court that day.” 

“The Chairman: Well, at the time this judgment 
was rendered and signed by Judge Speer, he says 
that it appeared to the Court that your client had 
paid you the $55 for the purpose of being used in 
paying for the stenographer’s transcript, is that cor¬ 
rect or not?” 

“Mr. Saussy: Well, it may be or it may not be, 
I did not give the Judge the evidence of it.” 

Complaint is made that summary proceeding by rule to 
collect the stenographer’s cost in this instance was without 
the jurisdiction of the Court. This complaint seems to be 
sustained by the case of S. A. L. Rwy. Co. vs. Memory, 126 
Georgia 183, so far as the Georgia State practice is con¬ 
cerned and the only contrary authority so far found ap¬ 
pears in the 26th Am. & Eng. Enc. of Law, (2 Ed.) page 
779, where the text is as follows: 

“It has been held that if an attorney wrongfully 
refuses to pay the legal charges of a court steno¬ 
grapher, the court may protect the latter by a sum¬ 
mary order against the attorney,” citing 

Wrignt vs. Nordand, 58 How Pr. 184. 

Certainly if this can ever be done, it would be proper 
where it appeared to the Court that the attorney had al- 


206 


ready received the money from the client and was refusing 
to pay it over to the stenographer. 

It further appears from Mr. Saussy’s testimony that his 
main contention was as to the amount of the record for 
which he should be required to pay the stenographer, rather 
than a question of jurisdiction, or the form of procedure, 
and he distinctly stated to the Judge that if he ordered the 
money paid under the rule it would be paid, and he is only 
uncertain as to whether he said it would be paid by himself 
or his client. This is hardly the language to be used by a 
party contesting vigorously the jurisdiction of the matter in 
hand before a court. 

In conclusion it is respectfully submitted that if any error 
was committed as to the form of procedure, or in the juris¬ 
diction. of the subject mater, substantial justice was done, no 
harm resulted, and the matter could have been corrected on 
appeal or review. 


THE CENTRAL RAILROAD CASE. 

The Order of March 3, 1892, appointing a Temporary 
Receiver for the assets of the Central Railroad & Banking 
Company of Georgia. 

In his testimony before the Committee, Mr. A. R. Law- 
ton, of the firm of Lawton & Cunningham, attorneys, of 
Savannah, Georgia, has adversely criticised the action of 
Judge Speer in passing the order of March 3, 1892, ap¬ 
pointing his uncle. General E. P. Alexander, then President 
of the Central Railroad & Banking Company of Georgia, 
temporary receiver of the assets of that Company. This was 
done on the bill of Rowena M. Clarke, of Charleston, S. C., 
a stockholder of the Central Railroad & Banking Company 
of Georgia, filed in behalf of herself and other stockholders, 
against the Central Railroad & Banking Company of Geor¬ 
gia, the Georgia Pacific Railway Company, the Richmond & 
Danville Railroad Company, and the Richmond & West 
Point Terminal Railway & Warehouse Company, and others. 



207 


From the averments of the bill, among other things, it ap¬ 
peared that the Richmond & West Point Terminal Railway 
& Warehouse Company, which will be referred to as the 
Terminal Company, was a stockholder’s holding company, 
which directly and indirectly through stock ownership, had 
acquired practically the entire stock ownership and control 
of the East Tennessee, Virginia & Georgia Railway Com¬ 
pany, of the Richmond & Danville, and a majority control 
of the stock of the Central Railroad & Banking Com¬ 
pany of Georgia, and through that company all the 
roads and subsidiary lines of the latter. The three great 
systems of railroad were practically parallel and com¬ 
peting lines. The two principal trunk lines of the 
two systems cut each other at Chattanooga, Rome, Atlanta, 
and Macon, and had their coast terminals at the adjacent 
ports of Savannah and Brunswick. Through the control of 
the Richmond & Danville system, including the Georgia 
Pacific Railroad property, by the Richmond & Danville, 
from Atlanta to Birmingham, Ala., also, through its control 
of the lines of the Central Railroad & Banking Company of 
Georgia, connecting the Atlanta system with Birmingham, 
the Terminal Company had acquired competitive lines ra¬ 
diating into Georgia from the great coal and iron fields 
of the Alabama section. 

This acquisition of the stock control of the Central Rail¬ 
road & Banking Company of Georgia was in the teeth of 
the following provision of the Constitution of 1877 of the 
State of Georgia: 

Article 4, paragraph 4 (Sec. 6466 of the Code of 1910) : 

“The General Assembly of this State shall have no 
power to authorize any corporation to buy shares of 
stock in any other corporation in this State or else¬ 
where, or to make any contract or agreement what¬ 
ever, with any such corporation, which may have 
the effect, or be intended to have the effect to de¬ 
feat or lessen competition in their respective busi¬ 
nesses, or to encourage monopoly; and all such con¬ 
tracts and agreements shall be illegal and void.” 


208 


It was also in violation of the following provision of the 
Code of Georgia, in Section 4253, Code of 1910: 

“A contract which is against the policy of the law 
cannot be enforced; such are contracts tending to 
corrupt legislation or the judiciary, contracts in 
general in restraint of trade, etc.” 

These provisions were both of force when the bill was 
filed. The acquisition of the controlling stock of three com¬ 
petitive interstate commerce lines was also in defiance of 
the recently enacted Sherman Anti-Trust Law of 1890. 

See opinion of Judge Speer, Clarke vs. Central 
Railroad, 1 Anti-Trust Decisions, p. 17. 

This was the second case reported and published by the 
Attorney-General in that valuable compilation. 

On December 19, 1888, the Georgia Pacific Railway Com¬ 
pany had leased its railroad lines to the Richmond & Dan¬ 
ville Railroad Company. This creature of the Terminal 
Company went into the operation of the leased road, and 
the Georgia Pacific existed thereafter as a shell organiza¬ 
tion only. Its solvency depended entirely upon its lease 
to the Richmond & Danville Company. Its paucity of assets 
made it wholly irresponsible. For this “sham^’ lessee 
to undertake the great obligation of the lease of the Central 
Railroad & Banking Company of Georgia, with its vast 
properties, as hereinafter mentioned, seems impossible now 
when the reign of the railroad wrecker has ended. Shortly, 
thereafter, however, through its majority stock control, the 
Terminal Company elected a board of directors of the Cen¬ 
tral Railroad & Banking Company of Georgia, and made 
E. P. Alexander, the uncle of the witness, president of the 
latter company. On June 1, 1890, this board of directors, 
thus placed in power and in control of the affairs of the 
Central Railroad & Banking Company of Georgia, executed 
a lease whereby all its railroads and steamship lines were 
leased directly to the Georgia Pacific Railway Company, or 
its control transferred to the latter through the stock con- 


209 


trol of the subsidiary lines of the Central. The lease was 
secured by a guaranty bond given by the Terminal Com¬ 
pany for one million dollars. The properties ostensibly 
transferred by this lease to the sham corporation aggre¬ 
gated over twenty millions of dollars. 

Now the charter of the Central Railroad & Banking Com¬ 
pany of Georgia gave it no power to lease its lines to other 
companies. It had no such power without express author¬ 
ization under the laws of Georgia, and the general law ap¬ 
plicable to such cases. The act was ultra vires. At the 
time of the lease the Georgia Pacific Railroad Company was 
not even operating its own road. Besides no resolution of 
the Board of Directors of the Georgia Pacific Railroad 
Company had ever been passed authorizing it to accept the 
lease of the Central. It never for one moment went into 
operation of the railroad lines of the Central. These were 
all coolly turned over to the Richmond & Danville. There was 
never any writing or contract, or even a “scratch of a pen,’" 
by which the lease of the great Central railroad properties 
to the Georgia Pacific Railway Company were transferred 
to the Richmond & Danville Railroad Company. There was 
an equal absence of any contract or agreement by which the 
Richmond & Danville Railway Company assumed in any 
way any liability for the performance of the terms of the 
lease to the Georgia Pacific, or for the operation of the 
Central railroad lines. As early as February 19, 1892, the 
Hon. A. 0. Bacon, a stockholder of the Central Railroad, 
had addressed a letter to General E. P. Alexander, Presi¬ 
dent of the Central, asking to be furnished with a copy of 
the supposed contract under which the Richmond & Dan¬ 
ville was then operating the Central Railroad and its prop¬ 
erties, if any. To this letter, Gen. E. P. Alexander had 
written the following reply: 

“New York Hotel, New York, February 22nd, 1892. 

Dear Sir: Your letter of the 19th forwarded has just 
reached me. I know nothing of the contract to which you 
refer and am therefore unable to give you any information 


210 


on the subject. I can only suggest that you apply to the 
parties themselves. 

Very respectfully, 

E. P. ALEXANDER, President. 

A. 0. BACON, Esq.^^ 

This appears from the record of the case. 

In the meantime, with no pretense of legal authority, as 
stated, the Richmond & Danville took possession of all the 
railroad lines and steamship lines of the Central Railroad & 
Banking Company of Georgia. It placed its own officers in 
control. It painted out the name of the Central Railroad of 
Georgia on the passenger cars and locomotives of the latter 
company. It was proceeding to demolish and transfer else¬ 
where the shops of the Central at Savannah. It did not 
indeed claim any authority to go in possession and operate 
the properties of the Central other than the general claim 
that it had been “requested'^ so to do by the Georgia Pacific. 

In the meantime, after June 1, 1890, the Richmond & 
Danville Railroad Company, through its officers, were cre¬ 
ating an enormous fioating debt for operating expenses of 
the Central Railroad. They were appropriating all its reve¬ 
nues. This was a most alarming danger. Under the rule 
which had been established by the Supreme Court in the 
case of Fosdick vs. Schall (88 U. S., 235), all these operat¬ 
ing expenses were a charge and first lien on the incomes 
and probably other assets of the Central, and were specifi¬ 
cally held to be such subsequently, not only in this case 
Clark vs. Central Railroad, 30 U. S. App., 263-66 Fed., 806), 
but in many other cases. See Rose Notes on U. S. Reports, 
9th vol., page 712. 

In the meantime, the first semi-annual dividend on the 
stock of the Central, after the so-called lease to the Georgia 
Pacific Company, accrued on January 1, 1892. On that date, 
also the Central had in addition to the fictitiously guaranteed 
dividend, large accruing obligations to meet. The Rich¬ 
mond & Danville, presumably the lessee and actually in pos¬ 
session, was presumably liable. The Georgia Pacific, the 
nominal lessee had nothing to pay with. Then this aston¬ 
ishing proposition followed. The Richmond & Danville 


211 


offered to pay what it owed as an “advance’^ if the Central 
would put in its hands shares of stock the latter owned in 
the New England & Savannah Steamship Company, to the 
estimated value of a million dollars. 

General E. P. Alexander had been a gallant chief of artil¬ 
lery under General Lee. He was an honorable man, but in 
the hands of the Wall Street operators, who were swiftly 
wrecking these vast properties, he was helpless. He, how¬ 
ever, endeavored to conserve his trust. On December 29, 

1891, as President of the Central, he filed a solemn '‘pro¬ 
test” against the illegal and unwarranted course of the 
Richmond & Danville. But the wreckers were as deter¬ 
mined as they were daring. Finally to prevent default on 
the obligations of the Central, its President consented to 
place these valuable securities in escrow in New York, to 
bring about as an “advance” the payn»,ent of nine hundred 
thousand dollars, every dollar of which in equity and good 
conscience the Richmond & Danville justly owed. By thus 
parting with perhaps the most available asset of his com¬ 
pany, the President kept up appearances, and for a short 
time averted its default. 

In the meantime, a committee had been appointed by the 
General Assembly of Georgia to investigate the legality of 
the Central's lease, and the operation of its lines by the Ter¬ 
minal Company, and its creature, the Richmond & Danville. 
This made the described conditions public. On March 2, 

1892, a minority stockholder demanded that the lease to the 
Georgia Pacific be cancelled. The President replied: 

“Yours of this date at hand. This Company re¬ 
spectfully declines to attem^ipt to cancel the lease of 
its properties to the Georgia Pacific Railway Com¬ 
pany, believing said lease to be to the interest of all 
the stockholders.” 

(Rowena Clark Record, p. 50.) 

A large amount of testimony, oral and documentary, was 
taken before the Legislative Committee. Among a number 
of witnesses. General Alexander and Pat Calhoun were ex- 


212 


amined under oath. Their testimony developed the essen¬ 
tial facts here stated. This testimony was printed, and a 
copy of it and the Report of the Committee was before 
Judge Speer at the time the bill of Rowena M. Clark was 
presented. The conclusion of that report of the Georgia 
Legislature is as follows: 

“The Committee finds the following lease is not 
authorized by the charter of the Central Railroad, 
to-wit; the lease of the Central Railroad to the Geor¬ 
gia Pacific. 

The Committee finds the following leases are con¬ 
trary to the competition clause of the Constitution: 

That of the Central by the Georgia Pacific, and 
that of the Macon & Northern (a road extending 
from Macon to Athens) by the Central and the Rich¬ 
mond and Danville.^’ 

Rowena Clark Record, p. 361. 

There was also at this time the gravest apprehen<^ion pT9t 
the State, through its legal department, would take action 
which would result in the immediate bankruptcy of the 
Central. 

But this was not all. Several of the directors of the 
Central had resigned from the Board. This resignation 
was made as a protest for the action of General Alexander 
in placing a million dollars’ worth of the Steamship stock 
with the Terminal Company to obtain the so-called “ad¬ 
vance made by the Richmond & Danville. It must be borne 
in mind that the Terminal Company not only dominated the 
Central, which was held in possession and whose assets 
were being thus diverted, but also the Richmond & Dan¬ 
ville, which held and controlled it. 

The correspondence of General Alexander in evidence in 
the Rowena Clark case shows that he could only protest and 
do no more. 

The foregoing facts, developed in the testimony before 
the Investigating Committee and made public by the re¬ 
port, were declared by General Alexander himself to be as 
notorious as the Civil War. 


213 


These facts, in their essence, were embodied in the bill 
presented to Judge Speer on March 3, 1892. He gave them 
the gravest and most careful consideration. An entire day 
was taken for consideration. The basic constitutional 
principles involved were not unfamiliar to him. They had 
been reviewed and considered first in the case of Langdon 
vs. Branch, 37 Fed., p. 449; and again in the case of Ham¬ 
ilton vs. S. F. & W. R. R., 49 Fed., p. 412. These, with the 
relevant averments and facts, were now carefully weighed. 
His conclusion was finally reached and announced. 50 Fed 
p. 338. 

These three cases, decided by Judge Speer, were cited by 
the Supreme Court of the United States in the case of 
Louisville & Nashville vs. Kentucky, 161 U. S., 703-4, a case 
in which similar principles were invoked. 

The receiver was appointed. The order of appointment 
was maturely considered and carefully drawn. To its 
guarded character the attention of the Committee is re¬ 
spectfully asked: 


“In the meantime, E. P. Alexander is appointed a 
Temjporary Receiver of this Court of all the prop¬ 
erty and assets of the said The Central Railroad & 
Banking Company of Georgia; it is ordered, how¬ 
ever, that the ordinary business of said Central Rail¬ 
road & Banking Company and its connections, shall 
be continued and conducted as usual, and until fur¬ 
ther order, without change of books or accounts. 

It is moreover ordered, that the said Temporary 
Receiver shall take care that none of the assets of 
said Central Railroad & Banking Company shall be 
converted to the use of the defendants, the lessees as 
aforesaid of the property of said Central Rail¬ 
road and Banking Company of Georgia, or other¬ 
wise misapplied, and to preserve the legal status 
of the property of the said Central Railroad & 
Banking Company, in accordance with this order, 
until the hearing. In the meantime, the said 
defendants are enjoined and restrained from dispos¬ 
ing of the properties, assets, rights or franchises of 
said Central Railroad & Banking Company, or from 
creating any encumbrance upon the same until the 
further order of the Court.” 


214 


Now the trained and practiced lawyers of the Committee 
will at once observe that this was an order of conservation. 
Here was no disruption of the ordinary business of the Cen¬ 
tral Railroad & Banking Company and its connections. 
These were ordered to be continued, and conducted as usual. 
The President of the road was appointed the receiver. What 
was he directed to take? “All the property and assets of 
the said the Central Railroad & Banking Company of Geor¬ 
gia.” Of course in this preliminary stage the court could 
not determine what were those assets. Alexander was not 
directed to take the properties away from the Richmond & 
Danville. If that Company had an actual valid lease, 
which entitled them to control the Central properties, the 
lease was the asset, and not the properties. Alexander had 
been trusted by the Terminal Company. The Court also 
trusted him. No matter where the legal title to the pos¬ 
session of the property was, Alexander was given no right 
or power to disturb it. True, the Court knew that there 
were millions of dollars' worth of negotiable securities be¬ 
longing to the Central which seemed in jeopardy. The in¬ 
comes of the Central, as we have seen, were surely in jeop¬ 
ardy, and the Court did order that the Temporary Receiver 
should take care of the assets, and should see that they were 
not converted to the use of the defendants, or otherwise 
misapplied. He was ordered to preserve the legal status of 
the property until the hearing, and the defendants were 
enjoined and restrained from disposing of the properties, 
assets, rights or franchises, or from creating any encum¬ 
brance upon the Central Railroad and Banking Company 
until the further order of the court. Never, it is submitted, 
in equity was an order more justified by the facts. Al¬ 
ready apprised of the misappropriation of a million dollars 
of assets, and their transfer to a distant state, the court 
well knew that a mere rule nisi, constituting lis pendens in 
Georgia, would not elsewhere protect the Central from the 
transfer of its negotiable assets to hona fide purchasers with¬ 
out notice, and the conservation order granted, it is sub¬ 
mitted, was in the discretion of the Chancellor, and that 
discretion was not abused. 


215 


Mr. Lawton complains that the bill did not aver insolvency 
of the Central Railroad & Banking Company of Georgia. 
This was wholly unessential. It did aver that the company 
to which the Central had surrendered its franchises, by a 
lease which a committee of the General Assembly had declared 
unlawful, was utterly insolvent. It did aver the financial 
embarrassment of the Richmond & Danville, and the Ter¬ 
minal Company. The material insolvency was of those whose 
action was threatening destruction to the Central, however 
solvent it might be. Those corporations, by their operation of 
its properties, ultra vires its charter, were piling up an im¬ 
mense amount of debt, and they were diverting its assets. 
In short, they were swiftly and surely wrecking that noble 
property. The bill was filed, the prayers were framed, and 
the order was intended to prevent the looting of the prop¬ 
erty. It enjoined the illegal voting of the holding company, 
which had obtained a bare majority of its stock and was 
"'freezing out” the minority stockholders, and that illegal 
corporate management which would enable the far-sighted 
operators behind the scheme to absorb for themselves the 
values rightly belonging to others. If the non-resident 
plaintiff had averred that her corporation was insolvent, she 
would have shown that she had no real interest to be pre¬ 
served, and would have put herself out of court. 

True enough, Mr. Justice Jackson, at a much later date, 
in passing upon certain collateral features of the case, ex¬ 
pressed the view that the Central Railroad “had been 
wrecked in 1891,” and was insolvent at the time the Rowena 
Clarke bill was filed. He pronounced it a mere “shell.” 
However that may be, these facts had not been fully devel¬ 
oped, and the bill as presented to Judge Speer was to protect 
the large values involved, from those who had no legal in¬ 
terest, and to prevent, if possible, the impending ruin. The 
bill as filed complied with the provisions of Equity Rule 94 
in regard to stockholders^ bills of the kind, and the relating 
decisions of the Supreme Court. 

Mr. Lawton complains that there was no allegation of 
irreparable injury. This, too, was unimportant, but such 
averment is contained in the 19th paragraph of the bill. 


216 


The equity of the bill depends upon the broader grounds 
already stated. The criticism that the bill itself did not 
pray the appointment of a temporary receiver seems idle. 
The prayer for the appointment of a receiver is distinct, 
and it is for the court to determine in its discretion, that 
the appointment shall be temporary. Besides there is a 
prayer for general relief. 

The receiver, as we have seen, was appointed on the 3rd 
of March, 1892, and with results the most amazing. The 
Richmond & Danville had been in operation of all the vast 
properties of the Central. The Georgia Pacific, the osten¬ 
sible lessee of the Central’s properties, by its answer, filed 
March 24th, now denied that it had been at any time in 
possession of any property of the Central; denied that it had 
the means of knowing, and declared that it did not know 
what property of the Central had ever been in the possession 
of the Richmond & Danville under the alleged contract of 
lease. It admitted, however, that it had “requested” the 
Richmond & Danville to assume control and management of 
the Central’s properties. 

The action of the Richmond & Danville was quite as 
amazing. Although it had long been in actual control of 
these great properties, collecting its incomes, appropriating 
its assets, and vastly increasing its debts, by formal letter 
from its counsel. Judge Speer was notified that the prop¬ 
erty had been formally surrendered to General Alexander, 
not only as receiver but as president, and had formally 
abandoned its claim to have the property restored to it by 
the decree in the case. These facts appear on pages 57 and 
59 of the Rowena Clarke record. 

On page 62 there is an answer filed by the Central Rail¬ 
road & Banking Company of Georgia. While it avers that 
the lease to the insolvent Georgia Pacific was decidedly to 
the interest of all stockholders of the company, minority as 
well as majority, it further avers that since the commence¬ 
ment of this case, both by answer filed among the records 
of this court, and by private notification, the Georgia Pa¬ 
cific Railway Company has asserted the invalidity of the 


217 


lease, and announced, unconditionally, its surrender of the 
same, not only to the receiver but to this defendant, and its 
intention to abandon the same permanently; and the Rich¬ 
mond & Danville Railroad Company, the operating agent of 
the Georgia Pacific Railway Company, has announced its 
permanent abandonment of the same also. 

This was sworn to by E. P. Alexander, President, on the 
28th of March. It concludes with this statement: 

^‘And this defendant submits itself to the jurisdiction of 
the court, as to the course it shall pursue in reference to the 
said contract of lease, and prays its direction and instruc¬ 
tion in the premises.” 

This answer is signed by Lawton & Cunningham, Solici¬ 
tors for the Central. 

The next order will make plain to the Committee how 
unsound was the conclusion just expressed over the signa¬ 
ture of the witness’ firm, that the lease to the Georgia Pa¬ 
cific was to the interest of the stockholders of the Central. 
This may be found on page 63 of the Rowena Clarke record. 
It recites: 

"‘Whereas, it appears to the court that there is due 
to the employees and laborers engaged in operating 
the Central Railroad and its properties for the month 
of February, 1892, the sum of about $190,000,” etc. 

Then follows the first administrative order, granted to 
pay the wages of labor on the entire system, due and unpaid 
twenty-eight days. 

Having abandoned its franchises and duties to the public 
for which it had been chartered by the State, having sur¬ 
rendered its railway lines to a fictitious lessee, who denied 
receiving them, having permitted a competing line to take 
them over without a syllable of authority, having without 
consideration permitted the diversion of more than a mil¬ 
lion dollars of liquid assets, having deprived the laborers 
and employees, even to the humblest track hands, of the 
wages upon which they depended for their daily bread, in 
the amount of nearly two hundred thousand dollars, Mr. 


218 


Lawton, the legal adviser of the company in this unlawful 
corporate management, comes into court, submits to the 
jurisdiction, and asks direction. In addition to this he 
condones the receiver’s appointment by becoming his coun¬ 
sel. As Henry Crawford said of him: '‘He sticks by the 
res” He was finally paid a great sum. Judge Speer was 
never informed how much, for his services in that vast liti¬ 
gation which resulted in the reorganization of the proper¬ 
ties, and their final restoration to efficiency and solvency. 
He is high in office in the reorganized and rehabilitated 
road, and twenty-two years later comes forward to con¬ 
demn the Judge whose orders and decrees saved all that 
was saved, and made the restoration possible. 

The hearing upon the rule nisi was delayed for a few 
days only. Judge Speer had urged Circuit Judge Pardee to 
come to Macon and preside in the weighty trial. This Judge 
Pardee did, and while Judge Speer sat with him, the opinion 
of the Circuit Judge controlled. 

It will be observed that as to the unlawfulness of the 
lease to the Georgia Pacific, and the unlawfulness of the 
possession and control of the Central properties by the 
Richmond & Danville, alleged in the Rowena Clarke bill, it 
stood absolutely confessed. Never at any time were any 
pleadings filed putting in issue the averments of the bill in 
those respects. To conserve the properties and to rescue 
for the Central its m/ore than a million dollars’ worth of 
assets which had already been diverted, the equity of the 
bill was not in dispute. 

In these respects no other similar proceeding has been 
more effective or produced greater results for the salvation 
of the properties from the daring operators who had them 
in charge. 

The other great legal question in the case was the right of 
the Richmond Terminal Company, owning competing lines, 
to vote the majority stock of the Central. By that con¬ 
trol great wrongs had been accomplished. These were con¬ 
fessed by the prompt abandonment and throwing back upon 
Alexander, receiver and president, all the properties de- 


219 


scribed, as soon as the right of the Richmond & Danville to 
the possession was challenged. The hearing before Judges 
Pardee and Speer was most thorough. They both con - 
curred. The Terminal Company was enjoined from the 
exercise of its voting trust. This was held to be in violation 
of the Constitution and laws of the State of Georgia before 
quoted 

In the nteantime, by voluntary resignation and re-elec¬ 
tion, the Board of directors of the Central was changed. 
General Alexander, president, and certain directors re¬ 
signed, and other directors were elected. H. M. Comer, one 
of the strongest and most upright of Georgia’s citizens, was 
elected president. Judges Pardee and Speer, to continue the 
policy of making as little change as possible, appointed the 
new board receivers of the lines of railroad which the 
Richmond & Danville had abandoned, and directed them to 
operate its properties. A stockholders’ meeting for the 
election of a new board of directors was ordered for May 
16th, at which the voting trust of the Terminal Company was 
enjoined, unless the stock it held should be transferred to 
other hands, and the court should be shown that the vote 
would be legal. It was contemplated by that order that the 
new board of directors should resume the operations of the 
properties, and the receivership should be terminated. This 
order was passed on March 28, 1892. But the duty of the 
court did not end here. It must regain the converted 
assets of the Central. A proceeding was filed by the Solici¬ 
tors of the Complainants to accomplish this end. These 
solicitors were J. L. Perry, Daniel W. Rountree, Marion 
Erwin and A. 0. Bacon. Their petition alleged that the 
depot building at Macon had been burned, and that the in¬ 
surance money collected, amounting to thirty thousand dol¬ 
lars, was held by the Richmond & Danville, who refused to 
turn over the same. It also alleged that the receiver was 
entitled to recover the stock of the New England & Savan¬ 
nah Steamship Company, held by the Central Trust Com¬ 
pany of New York, and which, as already stated, was 
placed in “escrow” to induce the alleged lessees to pay the 
semi-annual dividend, and other obligations. 


220 


This was not the only proceeding to recover this great 
asset. Another was filed by H. M. Comer, Chairman, of the 
Board of Receivers. It alleged that the Richmond & Dan¬ 
ville Company has not the slightest claim, or shadow of 
right to said stock, that there never had been the slightest 
foundation for their claim to hold it, that the Central owed 
the Danville nothing, and that in fact the Danville, when 
it assumed possession under the lease, received from the 
Central in cash and materials an amount quite equal to 
$844,000. This petition continues: 

“Inasmuch, therefore, as the claim on account of 
which only, was this stock deposited or impounded is 
palpably unfounded, unjust and unconscionable, 
your petitioner respectfully submits to the court that 
the receivers are now entitled to the possession of 
said stock ” 

and prays for an order that it be delivered to him at once. 
(Rowena Clarke Record, pp. 82-84.) 

That petition is signed by Lawton & Cunningham, which 
firm included the witness under consideration; and Den¬ 
mark, Adams & Adams,^ and this included another witness 
who has testified in this case. 

It will be interesting for the Committee to consider the 
methods by which the wrongdoers sought to retain these 
values. They are set forth in full in the order of the court 
directing restoration. This extends from the bottom of page 
91 to page 107, inclusive, of the Rowena Clarke Record. 

The efforts of General Alexander to secure the payment 
of the dividends due the stockholders of the Central, his 
telegraphic correspondence with General Samuel Thomas, 
director of the Danville Company, Pat Calhoun, etc., are 
indeed pathetic. To the latter gentleman he wires (page 99, 
Rowena Clarke Record) : 

“Pat Calhoun, 80 Broadway, New York City. 

I call on you and the other New York directors 
to protest against non-payment of our drafts, as de¬ 
fault on lease. It provides arbitration differences. 


221 


I am willing to put securities in escrow. Board 
meets to-morrow. 

E. P. ALEXANDER, President.” 
Calhoun replied (page 100) : 


Swann informs me Thomas directly repudiates 
statement that he agreed for you to put stock in 
Central Trust Company, and now declines to let 
Richmond & Danville pay any money unless this 
stock IS given as absolute security. It is very im¬ 
portant that you should come here by first train.” 

But at last these operators got the stock on the d^---nd 
which the witness, Mr. Lawton, has testified was absolutely 
unconscionable and unfounded, and Judge Speer, through 
the powers exercised under the bill which Lawton now con¬ 
demns, compelled its restoration, along with many other 
assets, liquid and otherwise, of which these lawless operators 
had obtained control. 

It was stated by Mr. Lawton in his testimony that Mr. 
Justice Jackson dismissed the bill for want of equity. In 
this the witness seems gravely inaccurate. The order made 
by Mr. Justice Jackson appears at page 314 of the Rowena 
Clarke Record. 

“Come now the parties by their respective solici¬ 
tors and this cause came on for final hearing upon 
the pleadings, testimony and exhibits, and was ar¬ 
gued by counsel, upon consideration whereof it is 
finally ordered, adjudged and decreed, that except as 
to the averments of the hill concerning the invalid 
ity of the lease dated June 1, 1891, from the Central 
Railroad & Banking Company of Georgia to the 
Georgia Pacific Railway Com2jany, all rights under 
which were disclaimed by the answers of the Georgia 
Pacific Railway Company, and the Richmond & Dan¬ 
ville Railroad Company, filed herein March 24th, 
1892, the said bill of complaint be and the same is 
hereby dismissed for want of equity; and the in¬ 
junction herein granted on March 28, 1892, restrain¬ 
ing and prohibiting the exercise of any voting power 
on the forty-two thousand two hundred shares of 


222 


stock in the Central Railroad & Banking Company of 
Georgia, set out in the bill, is hereby rescinded and 
vacated/' 

Before this date the properties had been recovered. It will 
be observed that the only part of the bill of Rowena M. 
Clarke which was dismissed was that part of which prayed 
an injunction against the voting of the majority stock of 
the Central Railroad & Banking Company of Georgia by 
the Richmond Terminal Company as being in violation of 
the competition laws of the State of Georgia. The equity of 
the bill by virtue of which the millions of values of the 
Central were recovered from a lawless and predatory con¬ 
trol, was wholly undisturbed. It would be astounding if it 
had been otherwise. 

It was, then, not held by the Associate Justice that the 
court did not have jurisdiction of the case, or that the re¬ 
covery of assets in the possession of the Richmond & Dan¬ 
ville, which had been recovered on March 28th, was not a 
proper recovery and proper relief, and Mr. Lawton, who, 
as we have seen, so strenuously advocated the recovery of 
these assets under the Rowena Clarke bill, is now plainly 
mistaken. 

The opinion of Mr. Justice Jackson was not printed in 
the Federal Reporter, but his reasoning appears at page 
487, et seq., of the Rowena Clarke Record. Judge Speer 
ventured to dissent. Rowena Clarke Record, p. 482, et seq. 

At the time Mr. Justice Jackson rendered this opinion, 
the great cases which have since been decided by the Su¬ 
preme Court of the United States, annulling the control by 
holding companies of stock in two parallel and competing 
lines, had not been decided. 

The gist of that opinion is that the States have not the 
constitutional power to prevent a holding company from 
controlling stock ownership of two parallel lines operated 
within the State, and chartered by the State. 

Two years later in the case of Louisville & Nashville 
Railroad Company vs. Kentucky, 161 U. S., 677, the precise 


223 


question was presented anew. It was then decided in favor 
ol the State by the Supreme Court of the United States: 


The purchase of such stock in a rival and com- 
void^’^ ^ contrary to public policy and 


Citing: 

Central Railroad vs. Collins, 40 Ga., 582 • 
Hazlehurst vs. Savannah, etc., 43 Ga., 13; 
Elkins vs. Caniden & Atlantic, 36 N. J. Eq. 5. 


They also refer in this case at page 704 to the decision 
of Judge Speer in Clarke vs. Central Railroad, 50 Fed., 338, 
and cite two other cases in which he had previously recog¬ 
nized a principle now so strongly imbedded both in our 
jurisprudence and legislation that it is no longer questioned. 
These cases are Langdon vs. Branch, 37 Fed., 491; and 
Hamilton vs. Savannah, etc., 49 Fed., 421. 

The leading and conclusive case on this topic is doubt¬ 
less Northern Securities Co. vs. United States, 193 U. S., 
197. Although the doctrine has been since reiterated by 
the ‘‘final arbiter.” 

The trustee for the mortgage underlying the principal 
bonded indebtedness of the Central, had now filed its bill of 
foreclosure. This was the Farmers Loan & Trust Company 
of New York. It held what was known as the “Tripartite 
Mortgage.” The Central had years before leased the South¬ 
western Railroad. That magnificent property extended 
through the fine agricultural territory stretching from 
Macon, in the center of the State, to Eufaula, in Alabama, 
with branches to Albany and other points. No property had 
been more favored by investors. The obligations of no 
other were regarded as better security. Its stock shares had 
been surpassed by no other similarly situated in market 
value. Justice Jackson, after full argument, sustained the 
contention of Mr. Lawton, and his associate counsel, that 
this property was liable to the payment of the tripartite 
bonds. He overruled the exhaustive briefs and arguments 
of Mr. A. 0. Bacon and Mr. F. H. Miller, who maintained 
the contrary. Judge Speer again dissented. But naturally 


224 


the opinion of the Associate Justice was held entitled to 
greater weight. Shares in the Southwestern dropped from 
above par to $30. The question was carried to the Circuit 
Court of Appeals, and by that court it was certified to the 
Supreme Court of the United States, and there it was 
settled by the security holders on the basis of Judge Speer's 
dissent. The Southwestern was relieved from the effect of 
the decree of the Associate Justice. Since then its stock 
has been above par, and has been sold at $120. 

The contention of Mr. Lawton that prior to the receiver¬ 
ship under the Clarke bill, the Central stock sold for $110/ 
per share, and when the litigation ended it sold for $4.50, is 
quite unfair in the inference he seeks against Judge 
Speer. He omits to state that up to that time, by one 
expedient and another, the semji-annual dividends had been 
regularly paid. He ignores the fact that the public was 
unaware of the lawless character of the Richmond & Dan¬ 
ville control, and the worthlessness of the Georgia Pacific 
lease. He ignores the statement of the Associate Justice 
that the Central was “wrecked in 1891," a year before the 
Rowena Clarke bill was filed. He disregards the fact that 
the public was unaware of the tremendous significance of 
the demand by the Terminal Company that the Central 
should part with its most valuable available asset, the New 
England & Savannah Steamship stock, before the Wall 
Street operators who controlled the three competing lines, 
would put up the money to pay the dividends they primar¬ 
ily owed. He ignored what he himself alleged in the bill 
filed by the Central asking the appointment of a receiver 
to conserve what remained, namely, that under the Rich¬ 
mond & Danville control twenty millions of indebtedness 
had been fastened upon the Central properties. These facts, 
and many others scarcely less significant, are fully set forth 
over his signature in the cross bill of the Central Railroad 
& Banking Company of Georgia, extending from: page 192 
to 212 of the Rowena Clarke Record. This bill is also signed 
by Denmark, Adams & Adams, a distinguished firm which 
included the Hon. S. B. Adams. 


225 


The facts recited are reiterated in the original bill filed by 
the Central, extending from pages 217 to 232 of the same 
Record. To be precise, on page 228 there appears this 
averment: 


“In January, 1890, the Central Railroad Com¬ 
pany was entirely free from any floating indebted¬ 
ness, and was otherwise in a most prosperous condi¬ 
tion, whereas, at this time, its floating indebtedness 
exceeds five and one-quarter millions of dollars. 
Since January 1, 1887, there has been an increase 
of over $20,000,000 in the obligations of this Com¬ 
pany without corresponding increase in productive 
property. In consequence of this large augmenta¬ 
tion of its indebtedness, of the Danville Company’s 
exhaustive drain upon its resources and large in¬ 
debtedness to it, of the diversion of its traffic, of the 
impairment of its credit consequent upon this asso¬ 
ciation, and for other reasons connected with the 
Terminal & Danville management, the Central R. R. 
Co. is now in an embarrassed financial condition, and 
was compelled on July 1st to default upon the semi¬ 
annual payments of interests on the tripartite bonds, 
and certificates of indebtedness hereinbefore de¬ 
scribed.” 

In view of these recitals, to which counsel so eminent have 
appended their professional signatures, it is well-nigh af- 
frontive to the Committee for Mr. Lawton to testify now, 
that the depreciation in Central Railroad stock was due 
to the action of Judge Speer on the bill which recovered its 
property from the hands of those, who as he recites, had 
ruined it and who in contemplation of equity must be re¬ 
garded as wrongdoers and trespassers. 

The two learned counsel mentioned, who have signed this 
bill, and who testified to the want of judicial atributes on 
the part of Judge Speer, have not, as we have elsewhere 
seen, always entertained that opinion so distressing to 
him. Indeed, in 1892, they regarded his judicial decisions 
as so valuable that they printed many of them in a special 
pamphlet. A copy of this has been placed in the hands of 
the Committee. It concludes with this temperate but dis- 


226 


tinct eulogium, to which for its evidential value he begs to 
invite the attention of the Committee: 

“It is not the purpose of this publication to defend 
the distinguished judge who presides over the Fed¬ 
eral courts for the Southern District of Georgia. 
This is unnecessary and it would be improper. His 
decisions are herein set forth, and they speak for 
themselves. In each case the law gave to any one 
who felt aggrieved, the right of appeal. It is but 
just to say that on several occasions, during the 
progress of this litigation. Judge Speer has from the 
bench given earnest expression to his desire, that in 
view of the great interests involved, an amicable ad¬ 
justment of these issues might be reached. Upon 
two, or possibly upon three different occasions, upon 
his own motion, he arrested the argument as to the 
New England & Savannah Steamship Company stock 
and ordered a recess, urging upon counsel to confer 
together and to come to an agreement, if possible, 
that would prevent further litigation, not only as to 
that matter, but as to all matters of difference be¬ 
tween the two companies. 

During the recent argument upon the Central’s 
application for a receiver for the Danville, he stated 
from the bench, that if the Central established by 
proof and by authority its right to the appointment 
of a receiver, he still would give the Danville the 
privilege of furnishing bond, and would not appoint 
a receiver if this were done. Throughout the entire 
course of this perplexing litigation, he has mani¬ 
fested the most solicitous regard for all the interests 
involved, and the most earnest desire to conserve 
these interests and to protect the rights of all par¬ 
ties.” 

Mr. Lawton was asked about this, and he frankly said, in 
effect, that in those days the Judge was deciding in his 
favor. It seems unfortunate for the Judge that in subse¬ 
quent cases he has felt it his duty at times to decide ad¬ 
versely to the distinguished witness. 


227 


A VIOLATION OF THE LAWS IN DRAWING JURIES. 

GREEN & GAYNOR JURY. 

Mr. Marion Erwin, United States Attorney, made a 
motion in writing calling the attention of the court to the 
fact that at the approaching session of the court at Savan¬ 
nah, there would be submitted to the Grand Jury for con¬ 
sideration, charges against Green & Gaynor, and others con¬ 
nected with the alleged frauds in the river and harbor im¬ 
provements, principally at Savannah, Chatham County, and 
in the coast territory contiguous to Brunswick, in the 
in the County of Glynn; that on account of the great noto¬ 
riety attached to the three-months' court-martial trial of 
Captain Oberlin M. Carter, at Savannah, and a large num¬ 
ber of persons who had heard the testimony there on oath, 
and the local connection of the contractors, and for other 
reasons stated, an impartial trial would best be promoted 
by drawing juries from the names in the jury box from 
counties other than Chatham and Glynn, and that such 
drawing would also save unnecessary expense by reason of 
the fact that there were so many persons disqualified from 
the counties of Chatham and Glynn by reason of their con¬ 
nections, having heard testimony in the court-martial case, 
that it would require repeated drawing of panels of juries 
and much delay in selecting the jury. The court knew these 
representations to be true, and passed an order on Novem¬ 
ber 22, 1899, in accordance with Section 802 of the Revised 
Statutes that the jury be drawn from the jury box of the 
Eastern Division of the Southern District of Georgia from 
the names in the box, excluding the counties of Chatham 
and Glynn. 

''Jurors shall be returned from such parts of the 
district, from time to time, as the court shall direct, 
so as to be most favorable to an impartial trial, and 
so as not to incur an unnecessary expense, or unduly 
burden the citizens of any part of the district with 
such services." Sec. 802 Revised Statutes. 


228 


This section applies to both grand and petit juries. 

U. S. V. Stovall, 2 Curt. 153 (1854). 

U. S. V. Agnew, 165 U. S. 36 (1897). 

U. S. V. Ayres, 46 Fed. 651 (1891). 

It is constitutional. 

U. S. V. Penschal, 116 Fed. 642 (1902). 

U. S. V. Ayres, 46 Fed. 651. 

The drawing may be limited to the jurors in the box from 
a single county. As was done in the Agnew case, also in 
the Chaires case. 

U. S. V. Chaires, 40 Fed. 820 (1899). 

U. S. V. Price, 30 Fed. Cas. 16088. 

“The constitutional amendment does not guarantee 
to the accused either a grand or petit j ury to be com¬ 
posed of persons representing every locality in the 
district.” 

U. S. V. Penschel, 116 Fed., 642. 

Section 802 Revised Statutes not repealed by Act of 1879. 

None of these sections 800, 802, etc., are repealed by 
the Act of June 30, 1879. 

Lovejoy v. U. S. 128 U. S. 172. 

St. Clair v. U. S. 154 U. S. 134. 

U. S. V. Richardson, 28 Fed. 61. 

Agnew V. U. S. 165 U. S. 36. 

Section 802 is re-enacted in the Judicial Code of 1912, 
section 277. 

After making the order, which was made on motion in 
open court at. Macon, the jury box of the District Court 
for the Eastern Division of the District was brought in by 
the Clerk and placed before the Judge, it being then prop¬ 
erly under seal. The Marshal, Mr. Barnes, produced the 
key. The box was opened so that the tickets therein which 


229 


each contained the name of the juror and the county of 

IS residence, folded with the name inside so that the name 
could not be seen until it had been withdrawn and opened. 
The record discloses the fact that there was present in the 
court-room at least the following officers, the Judge, the 
Clerk, the United States Attorney and the United States 
Marshal. As a matter of fact, there was also present the 
Judge’s secretary, Mr. Talley, the bailiffs, and according 
to the recollection of the United States Attorney, other 
attorneys of the Macon Bar, who only left the court-room 
after the drawing had commenced. According to the recol¬ 
lection of the Judge and the United States Attorney, no 
person other than the Judge put his hand in the jury box. 
The Judge drew from the box one ticket at a time, opened 
the ticket, read the name and county, and if the juror so 
drawn was from any of the counties other than Chatham 
and Glynn, handed the ticket over to Mr. Lenoir M. Erwin, 
Deputy Clerk, who repeated the name and entered it upon 
the printed form which was to become a part of the 
writ of venire. If the name was drawn and read out by the 
Judge which appeared from the ticket that the juror was 
from either of the counties of Chatham or Glynn, it was 
handed over to the Clerk and put in an envelope until a 
sufficient number of jurors were entered on the list to com¬ 
plete the panel of grand jurors required. 

The drawing was continued until twenty-nine names of 
jurors from counties other than Chatham and Glynn had 
been entered on the list. The list was then signed as having 
been made up from jurors drawn in their presence by the 
Judge, the Deputy Clerk, the United States Attorney and 
the Marshal. At the bottom of the list was a form of 
printed order which was then filled in by the Clerk which 
directed the issue of the venire and the date of return. This 
order was then and there consented to by the Judge in open 
court. The Clerk then issued the formal writ of venire 
and delivered the writ to the Marshal who was directed to 
summon the jurors to appear at the date fixed for the ap¬ 
proaching sesssion of the court at Savannah. 

The indictment found on December 8, 1899, by that grand 


230 


jury at Savannah against Green, Gaynor, et al., was attacked 
by the defendants by pleas in abatement, among other 
things because the drawing of the jury was made in open 
court in the Western Division at Macon instead of as con¬ 
tended, it had to be in open court in the Eastern Division at 
Savannah. The Jury Act, Section 2, of the Act of 1879 (21 
Stat. L. 43) does not require that the jury be drawn in 
open court anywhere. The Act simply provides that the 
jury shall be “publicly’' drawn. Mr. Justice Gray, held 
that “All that is required is that the drawing shall be done 
in a public manner.” (U. S. vs. Richardson, 28 Fed., 61.) 

The rules adopted for the Circuit and District Courts for 
this District by the predecessor of Judge Speer, the Hon¬ 
orable John Erskine, and by the Circuit Judge, provided 
that juries might be drawn even in vacation in the pres¬ 
ence of the Judge, the Clerk, or his Deputy, the Marshal 
or his Deputy, the District Attorney or Assistant Attorney, 
the jury commissioner and such other persons as may 
chance to be present, not less than three. Rule No. 60, 
printed in 1880. 

The Supreme Court of the United States had held that 
jurors drawn and residing in one division may indict for 
crimes committed in another division of the same District. 
Barrett vs. United States, 218, Barrett vs. United States, 
169 U. S., 231. 

The pleas of the defendants to that indictment were 
stricken on motion of United States Attorney by Judge 
Speer, and this ruling was assigned as a ground of error on 
the appeal of the Green & Gaynor case to the United States 
Circuit Court of Appeals, and that court held no error had 
been committed. 

Prior to the filing of the above mentioned pleas in abate¬ 
ment, proceedings were instituted by the United States in 
New York for the removal of Green and Gaynor from the 
Southern District of New York to Georgia, under the pro¬ 
vision of Section 1014, Revised Statutes. These proceed¬ 
ings were based upon complaint on oath with a copy of the 
aforesaid indictment attached as the basis upon which com- 


231 


plaint was made. In the proceedings before the United 
States Commissioner, John A. Shields, the defendants sum¬ 
moned to New York as a witness for the defense, Mr. John 
M. Barnes, United States Marshal, and L. M. Erwin, 
Deputy Clerk, to prove the manner of the drawing on 
November 22, 1899, of the Grand Jury which had found the 
indictment, as hereinbefore stated. The testimony of these 
two witnesses was taken before the Commissioner on behalf 
of the defendants. Mr. L. M. Erwin, the Deputy Clerk, tes¬ 
tified as to the drawing substantially as hereinbefore set 
out. Mr. J. M. Barnes, Marshal, also testified then and there 
substantially in the same way as to what took place, and 
the manner in which the drawing was conducted. Mr. 
Barnes, however, then testified that he did, or may have 
helped the Judge in taking the tickets from the jury box. 

The recollection of the United States Attorney and other 
officers present is to the contrary, they all agreeing that the 
Judge then and universally has drawn the tickets from the 
box himself. 

In his testimony before this Committee, Mr. Barnes 
states that he does not positively recollect whether he did 
help draw the tickets from the box or not. The testimony 
of Mr. Barnes in New York before the Commissioner, is 
contained in one of the printed volumes of the testimony of 
the Green and Gaynor removal proceedings, which has been 
filed with the Committee. In the same volume is the testi¬ 
mony of Mr. L. M. Erwin, the Deputy Clerk, and also the 
written motions made by the United States Attorney, and 
the order of the court relative to the drawing hereinbefore 
referred to. Mr. Barnes in his testimony before the Com¬ 
mittee, has given a very different account of the manner 
of the drawing from that which he gave before the Com¬ 
missioner in New York, and claims that he remembers the 
facts better now than he did fourteen (14) years ago, when 
he gave testimony in New York. His excuse is that he 
did not testify as to the whole truth then because he was 
trying to keep from criticising the acts of the other offi¬ 
cers of the court. The record shows that he was interro- 


232 


gated fully by the defendant, and his failure to speak the 
whole truth then, if the facts now stated be true, places him 
in such a position in regard to his present testimony as to 
make it necessary to comment upon the credit which should 
be attached to that testimony. He now testifies before this 
Committee, Record, p. 919, et seq., in substance that the 
Judge drew fifty (50) names from the box and handed to 
him, Barnes, and asked him to look over them, and what 
about them, and if he knew any of them, and that he looked 
at them, and they were from the Southwestern Division, 
where he didn’t know anybody, hardly, and in substance 
that the jury was made up in that way. This testimony 
is not only in full contradiction of Mr. Barnes’ testimony in 
New York, but also of that of Mr. L. M. Erwin, Deputy Clerk, 
who testified in New York at the same time. Mr. Marion 
Erwin, United States Attorney, conducted the removal pro¬ 
ceedings before the Commissioner in New York. His posi¬ 
tion that none of the testimony offered there for the pur¬ 
pose of attacking the indictment of the court of record in 
Georgia was competent in that proceeding, and no evi¬ 
dence was offered there in regard to the drawing by the 
Government. 

Warrants for removal were granted by the United States 
District Judge in New York, and were sustained on appeal 
from habeas corpus by the Supreme Court of the United 
States. (Green versus Henkel, 183 U. S., 249, Beavers 
versus Henkel, 194 U. S., 85.) 

Mr. Barnes was not the United States Marshal at the 
time of the trial of the Green & Gaynor case in the Spring 
of 1906, in the United States District Court at Savannah. 

In the meantime Judge Speer, on demurrer by defend¬ 
ants, quashed two of the principal counts of the indictment 
found in 1899, as aforesaid, and the United States Attorney 
had submitted the charges again to the new Grand Jury 
which preferred another indictment against Green & Gay¬ 
nor which covered the other counts of the earlier indict¬ 
ment as well as supplied with fuller averments the defects 
for which the two counts of the other indictment had been 
quashed by Judge Speer, and also still another indictment 


233 


had been returned by the Grand Jury bringing in new 
charges to meet certain phases of the extradition treaties 
and Canadian Statutes which were deemed of importance 
in view of the flight of the defendants to Canada and their 
return under extradition treaties. 


THE SO-CALLED SPECIAL JURY BOX. 

The first charge of unfair treatment miade by the attor¬ 
neys for the defendants related to the making up of what 
the defendants called a special jury box for the trial of the 
Green & Gaynor case. 

To understand the situation at that time (January, 1906), 
it must be remembered that the crimes with which the de¬ 
fendants were indicted were charged to have been com¬ 
mitted in the Eastern Division in 1897, and prior thereto. 

Congress, by the Act of June 30th, 1902 (37 Stat. L. 
551), had severed from the Eastern Division of the District 
certain counties, which, with certain other counties, were 
created by that Act into a new Division of the Southern 
District. That Act provided that prosecutions for crimes 
or offenses heretofore commenced in the Southern District 
as hitherto constituted shall be proceeded with as if this 
Act had not been passed. (Sec. 4.) 

The jury box then made up consisted of only jurors from 
the Division as created under the Act of 1902. It was rep¬ 
resented to the court by the United States Attorney, that 
by reason of the aforesaid provision of the Act of 1902, 
and by reason of the sixth amendment of the Constitution of 
the United States which provides that, 

'Tn all Government prosecutions the accused shall 
enjoy the right to a speedy and public trial by an 
impartial jury of the State and District wherein the 
crime shall have been committed, which District 
shall have been previously ascertained by law, etc.'' 

It would be, to say the least, doubtful as to whether or not 



234 


jurors from a box made up especially for the trial of cases 
for the Division as changed by the Act of 1902, v^ould be 
subject to a legal challenge, and that the jury box should 
be made up under the laws applicable to the Eastern Divis¬ 
ion prior to the Act of 1902. 

On November 4, 1905, on motion of the United States At¬ 
torney, Judge Speer appointed Hon. W. S. West jury commis¬ 
sioner, and directed that he and Mr. Tomlinson F. Johnson, 
Clerk, make up in conformity with the Act of Congress of 
June 30, 1879, a jury box containing five hundred (500) 
names of j urors to be selected by them from certain counties, 
to-wit, Lowndes, Brooks, Decatur, Thomas and Berien, of 
the Eastern Division of the District, as said Eastern Divis¬ 
ion was constituted prior to the Act of 1902. Mr. West 
was a resident of the Division, and had been President of 
the Georgia Senate, a well known Democrat, and a man 
whose character has always been of the highest. Mr. John¬ 
son, Clerk of the court, was a well known Republican. These 
commissioners selected five hundred (500) names and 
placed them in the box in accordance with the order of the 
court. In accordance with the rules of the court adopted 
for the District Court by the predecessor of Judge Speer, 
the Honorable John Erskine, and for the Circuit Court by 
the Honorable William D. Woods, Circuit Judge, the names 
and county of residence of the jurors placed in the box by 
the Clerk and jury commissioner, were recorded in a rec¬ 
ord book kept by the Clerk. This was a public record, sub- 
pect to inspection by the Marshal, for his convenience in 
serving summons upon jurors, and by the attorneys, or any 
other persons interested in the j ury trials which might arise 
in court. The order of November 4th, 1905, appointing the 
jury commissioner and directing that he and the Clerk make 
up the jury box, was made at Macon where the Judge was 
then presiding. The Act of 1879 (Sec. 2) provides that the 
jury commissioner shall be appointed by the Judge, and the 
appointment is not by law required to be by the court. It 
was not therefore, an order that had to be entered in open 
court either at Macon or Savannah. The Act of 1879 does 
not make it a requisite of the validity of the making up of 


235 


jury boxes by the Clerk and commissioner, that there shall 
be any formal order at all. The only requisite in that re¬ 
spect is that there shall be in the box the names of at least 
three hundred (300) persons with the qualifications pre¬ 
scribed, whose names shall have been placed therein by the 
Clerk and jury commissioner appointed by the Judge. 

The letter of Judge Speer, dated November 4, 1905, to 
the Clerk of the Court at Savannah, enclosing the order, 
is given on page 1435 of the Committee Record, as read by 
Mr. Lawrence. In this letter, among other things, the 
Judge stated: 

'‘While the order itself should be placed on the 
minutes of the 9th inst., which is the first day of the 
term, there is no occasion for its publication at pres¬ 
ent and this should be avoided. It is the duty of 
all connected with the court to avoid anything which 
would create sensation and excitement. Mv onlv 
object is to secure an impartial jury; a thorough, de¬ 
liberate and satisfactory hearing and trial of these 
important cases. I feel sure that I have the right to 
ask your best efforts to bring about this result.” 

Mr. Lawrence had construed the direction of the Judge to 
the Clerk, directing him to put the order of November 4th, 
on the minutes of the court on November 9, 1905, that 
being the first day of the approaching session, as a disre¬ 
gard of the legal right of the defendants. It is difficult to 
see what legal rights of the defendants would be invaded. 
For obvious reasons of public policy, to have made a for¬ 
mal publication through the newspapers that the Clerk 
and jury commissioner were engaged in the important task 
of selecting five hundred names from the body of the Dis¬ 
trict to constitute the jurors at the approaching term of 
the court, at which important Government prosecutions 
were to be tried, might have resulted in the failure of jus¬ 
tice in trial or prosecution of the causes. It would have 
subjected the Clerk and jury commissioner probably to a 
flood of applications from more or less irresponsible per¬ 
sons, directly or indirectly, to put their names in the box. 


236 


It might have resulted, through the efforts of persons 
charged with crime, in having their friends or tools in¬ 
cluded in the list for the purpose of thwarting the ends of 
justice. The defendants, who were subsequently shown, 
not only by the trial before the District Court in Savannah, 
but in the civil trial in numerous other courts of the 
United States, and by the final adjudication of the Supreme 
Court of the United States, to have embezzled over two 
million dollars from the Government, could hardly be ex¬ 
pected to refrain from improper methods which might have 
deceived even the most conscientious jury commissioner 
and clerk. The direction of the Judge not to advertise the 
fact that the jury commissioner and Clerk would be engaged 
in their work, was wise and salutary. 

The Statute, as we have already seen, did not require 
any matter to be spread upon the minutes at all. Never¬ 
theless, the Judge directed that it be entered upon the min¬ 
utes within five days from the time. The order was entered 
after the first day of the session of the court, to which min¬ 
utes all the attorneys practicing in the court at Savannah, 
including Mr. Lawrence, had access. 

As is shown by the Committee (Record, p. 1512), on 
November 16, 1905, a jury was drawn from the jury box so 
prepared by the Clerk and jury commissioner, which draw¬ 
ing was in open court at Savannah in the presence of the 
Judge, the Clerk, the United States Attorney, Marion Erwin, 
Mr. Alexander Akerman, Assistant United States Attorney, 
and the United States Marshal. Thirty-six (36) names 
were drawn and from the jurors returned, a panel of grand 
jurors was impaneled. 

On November 18, 1905, in open court, Mr. Lawrence tes¬ 
tified (p. 1438), that either the District Attorney, or the 
Judge sent defendant’s counsel a note informing him that 
the Judge would charge the grand jury relative to these 
cases, and the defendant’s counsel was present when the 
grand jury was so charged, and they made no objections. 
This grand jury returned two additional indictments 
against Green & Gaynor and others covering certain of¬ 
fenses bailable under the extradition treaties, in addition to 


237 




those for which they had been previously indicted. An 
order of the court, spread on the minutes of November 16, 
1905 (Rec., p. 1513), recites the making up of the jury 
box by the Clerk and Mr. West, and Mr. Lawrence and 
other counsel for defendants, if they failed to be alive to 
what was taking place in open court in the city of their 
residence, ought not to be allowed to place their own laches 
to the charge of the Judge. 

Mr. Lawrence, in his testimony, states that he did not 
know anything relative to the making up of the jury box 
by.the Clerk, Mr. Johnson, and Mr. West, until early in 
January, 1906. He testified before the Committee that 
some time, about six weeks prior thereto, the exact time he 
did not remember, he asked Mr. Johnson about the making 
up of the jury box which he had heard rumored was being 
done, and that Mr. Johnson told him none had been pre¬ 
pared, and that he did not bother himself to look on the 
minutes between that time and the first of January, 1906. 
It may well have been that the conversation between Mr. 
Lawrence and Mr. Johnson occurred even prior to the 
time when the jury box had been prepared. At any rate, 
the only direction given by the Judge to Mr. Johnson 
appears in the written order from the Judge to the Clerk, 
already referred to, which directs the Clerk to enter the 
order on the minutes at the opening of the session on Nov¬ 
ember 9, 1905, and there was certainly no direction from 
the Judge which authorized Mr. Johnson to misrepresent 
the facts to any one. 


THE GREEN & GAYNOR TRIAL JURY. 

Mr. Lawrence and Mr. Osborn next complained that an 
injustice was done them in that the traverse jurors drawn for 
the trial of the Green & Gaynor case were not drawn from 
the box at the opening of the session of the court on Janu¬ 
ary 9, 1906, when the Green & Gaynor cases were called. 

To understand the situation, the following facts are perti- 
nent: 



238 


As already stated, the first indictment, number 322 pre¬ 
ferred by the grand jury on December 18, 1899, had been 
at the February term, 1902, of the District Court at Savan¬ 
nah, demurred to by the defendants, and Judge Speer had 
sustained the demurrer to two of the principal counts in 
the indictment. This was after the defendant had given 
bond on the removal proceedings in New York, to appear in 
Georgia. They had appeared, and were successful before 
the court to the extent above stated. At the February 
term, 1902, the District Attorney obtained a new indict¬ 
ment, number 371, in which the allegations covering the 
two counts of the old indictment quashed were thought by 
the United States Attorney to be covered, and the defend¬ 
ants immediately took their flight to Canada and their 
bonds were forfeited. After their extradition from Canada, 
in October, 1905, and after the additional indictment re¬ 
turned on November 18, 1905, the case was set for plead¬ 
ing on January 8, 1906. The United States Attorney noti¬ 
fied the Judge that he desired to have all the preliminary 
questions disposed of before the trial jury was called, as the 
Government had a large number of Government witnesses, 
consisting of United States army officers engaged in public 
duties in different parts of the country, and that most of 
them would have to come from even so far as California. 

It was not known to the District Attorney or to the Judge, 
what the latter’s rulings would be on the indictments against 
the defendant, numbers 371, 476, 477, on the demurrers and 
pleadings which the defendants would probably file. 

If the court should find them defective, there would be 
a large waste of public money in bringing witnesses from 
all over the United States, and keeping jurors unnecessarily 
in attendance while a new grand jury was being summoned 
and new indictments found. It is not unusual, but we think 
a general practice, that questions should be disposed of even 
prior to the assignment of cases for the formal jury trial. 
There is certainly no rule of law against it, and in a case of 
the character in discussion, in the interest of public justice 
and economy, there is every reason for so doing. 


239 


When the case was called for pleading on January 9, 1906, 
the defendants filed numerous pleas in abatement to indict¬ 
ments numbers 371, 476 and 477, not only on the grounds of 
alleged irregularities in the making up of the jury boxes and 
the drawing of juries heretofore referred to, but also spe¬ 
cial pleas that the defendants were being tried for offenses 
not provided for in the extradition treaties. The court 
heard elaborate arguments on these various dilatory de¬ 
fenses, and on the extradition question, admitting testi¬ 
mony, and finally struck the pleas. The defendants then de¬ 
murred to indictments 371, 476 and 477 and after the elab¬ 
orate arguments and demurrers were overruled. 

On January 16, 1906, all of the preliminary questions 
having been disposed of adversely to the defendants, they 
pleaded not guilty to indictments 371, 476 and 477. 

They had already on February 2, 1902, pleaded not guilty 
to indictment number 322. 

On motion of the United States Attorney on January 16, 
1906, the four indictments were consolidated and the case 
was then for the first time in a condition where there was 
any certainty that a jury trial could be had. 

Following the disposition of these preliminary questions 
on January 16, 1906, a sufficient number of traverse jurors 
to allow for expected challenges for cause were finally 
drawn from the jury box in open court at Savannah in the 
presence of defendants and their counsel. The counsel for 
the defendants admitted they were present at that draw- 

The order of the court for the issue of a venire returnable 
on January 19th was entered in open court in the presence 
of counsel for the defendants. They made no motion ask¬ 
ing for further time. The jurors were summoned by the 
Marshal through his deputies, at their homes in the re¬ 
spective counties in which they lived. 

Defendant's counsel admit that they got a list of the 
jurors drawn and the counties of their residence on the 
day the jurors were drawn in open court. Mr. Lawrience 
and Mr. Osborn now complain that the four days between 


240 


the drawing of the jury and the return of the jurors on 
January 19th, did not given them sufficient time to investi¬ 
gate the jurors, some of whom were in counties more than 
that one hundred and fifty (150) miles from Savannah. As 
a matter of fact, the jurors lived in toiwns, or very ntear 
thereto, in counties through which the railroad passed from 
Savannah. 

Mr. Lawrence testified (p. 1443), that prior to the draw¬ 
ing of the traverse jury on January 16, 1906, defendant's 
counsel sent four or five young men down to the counties 
from which jurors were likely to be drawn, and that as soon 
as the jury was drawn that they wired the names of the 
jurors to these agents in the respective counties, who tele¬ 
phoned them back information relative to the different 
jurors. He.states that the men sent down were reputable. 
The statement of Mr. Lawrence that they had sent these 
young men to the particular counties from which the jury 
box was drawn, is an admission that counsel for the de¬ 
fendants did know of the previous orders of the court 
under which the jury box was made up, certainly at that 
time; they certainly must have known it as early as Novem¬ 
ber 18, 1905, if not earlier, because they were then present 
in court when the grand jury was impanelled and charged 
relative to the law, affecting these individual defendants. 

From the traverse jury put upon the defendants by the 
United States, January 19, 1906, the twelve jurors who 
tried the case were selected, after which each juror 
was put upon his voir dire, which took five or six hours. If 
the jurors had been drawn from all the counties of the 
Division, including the counties of Chatham and Glynn for 
the reasons heretobefore stated it is probable that so many 
of the jurors would have disqualified by reason of their con¬ 
nection with the large contracts of Green and Gay nor, or be¬ 
cause of hearing the testimony in the court-martial proceed¬ 
ings, and other causes, that it would have taken ten days or 
two weeks to get a qualified jury, and when one was so 
obtained it is quite probable that some juror might have 
been obtained too much interested in side issues to the con- 


241 


troversy to render a fair verdict. Judge Speer was informed 
by Mr. Marion Erwin, United States Attorney, after the 
twelve jurors had been selected, sworn and segregated, and 
other jurors not taken excused, that a number of the latter 
before leaving for their homes, had reported to him that 
after they had been summoned, and on their way to court, 
they had been approached by strangers on the train who 
endeavored to engage them in conversation and commit 
them to an expression of opinion in regard to the guilt or 
innocence of the defendants. Green and Gaynor, and that 
they had seen some of the men that morning talking to the 
defendant s counsel, and felt it their duty to report them to 
the United States Attorney. The Judge did not think that 
the ends of public justice would be promoted by making an 
investigation further into the matter. 

There is no statute or rule of common law which re¬ 
quired that the defendants in ordinary cases shall have any 
given number of days^ notice of the individual jurors sum¬ 
moned from the body of the District from which a jury 
to try their cases are to be selected. Sec. 1033, Revised 
Statutes provides that in capital cases a list of jurors shall 
be delivered to the defendants at least two entire days be¬ 
fore the trial. The Green & Gaynor case was not a capital 
case, and yet the defendants had three full days’ notice of 
the names and counties of residence of the jurors sum¬ 
moned. It is probable that in ordinary cases Congress had 
in mind the advisability of not having jurors approached 
by defendants before trial when it did not make such pro¬ 
vision in regard to ordinary cases. Certainly the defend¬ 
ants had notice as early as November 18, 1905, and they 
were in court when the court charged the grand jury the 
law applicable to their cases, with the probability of their 
cases coming up in court at that time. Defendants’ counsel 
knew of the published rules of court in existence for years 
regarding the record to be made of the jurors in the jury 
box. They had two months within which to have found out 
about the antecedents and character of every juror on the 
jury list, which consisted of five hundred names. 


242 


It now seems they are charging Judge Speer with unfair¬ 
ness to excuse their own laches in performance of duties 
which devolved upon them; as counsel. 

To these questions made by the defendants’ counsel on 
the trial of the Green & Gaynor case, exceptions in regard 
to the ruling of the court were noted. They made their 
assignments of error, and after a full review of the entire 
case by the Circuit Court of Appeals, the rulings of Judge 
Speer on those and other questions were sustained. 


BRANEN JURY. 

Mr. T. S. Felder criticises the action of the court in order¬ 
ing the Marshal to summon a jury in the Laidler Branen 
and John Branen case, tried in March, 1910, the Branens 
being charged with peonage. 

The complaint is that on the day before the trial, he 
looked at the minutes and did not see any order of the Judge 
for the summoning of a jury, and that on the morning of the 
trial he saw a number of jurors present, all from the city 
of Macon or county of Bibb, and on examining the minutes 
he found the order on the minutes by the Judge, directing 
the Marshal to summon a jury for that case, that he knew 
that the jurors so assembled were not drawn from the jury 
biox, that the jurors were all men of high standing in the 
community and notwithstanding the fact that he believed 
that they had been irregularly summoned, he decided not 
to raise the question, that he tried the case and acquitted 
the defendants. 

The minutes of the court show that on the 26th day of 
February, 1910, there was an informal order entered by 
the Clerk as is usual where an oral direction is given by the 
Judge from the bench, which order directed the Marshal 
to summon fifteen tales jurors, and return them the next 
day. Following that, on the same day, there was a written 
order covering the same matter, written on the minutes, 
which written order was signed by the Judge. It is re¬ 
quired under the State practice for the Judge to sign every 



243 


order that is entered on the minutes of the court. In the 
Federal Court the practice in a greater number of Districts 
is that the Clerk enter the order under the direction of the 
Judge, either orally given or from memoranda initialed by 
the Judge. It is probable that Mr. Felder failed to notice the 
Clerk s memorandum order when he examined the min¬ 
utes on the day before, and it is probable that the former 
written order was signed by the Judge somewhat later on 
the same day and handed to the Clerk. This accounts for 
the fact that two orders covering the same subject matter 
appeared on the minutes. Mr. Felder only noticed the lat¬ 
ter order on the next day. 

Section 804 Revised Statutes, provides that “when from 
challenges, or otherwise, there is not a petty jury to de¬ 
termine any civil or criminal case, the Marshal or his 
deputy shall, by order of the court in which such defect of 
jurors happens, return jurymen from the bystanders suffi¬ 
cient to complete the panel.” 

This section of the Revised Statutes was not repealed by 
the Act of June 30th, 1897, Lovejoy vs. U. S., 171, St. Clair 
vs. U. S., 154, U. S., 134. U. S. vs. Richardson, 28 Fed., 61. 
Agnew vs. U. S., 165, U. S. 36. 

Mr. Felder now makes the point that the entire panel of 
jurors summoned in the Branen case was so summoned by 
the Marshal under the order of the court, and in order to 
make the jury valid there should have been some of them 
previously drawn from; the box under the Act of 1897, and 
that where all are summoned as tales jurors, the panel is 
illegal. It does not appear that this exact question has ever 
been decided by any of the Federal courts. It is not im¬ 
probable that if the matter had been called to the attention 
of the Judge, Mr. Felder’s argument on that subject 
would have been persuasive, but it appears that although 
he testifies that he had knowledge of the facts not stated by 
him at the time, he refrained from calling it to the attention 
of the court. It is certain that the jury selected by the 
Marshal under the order of the court in general terms, 
directing him to summon jurors, would be a good jury at 
common law. 


244 


It would be the duty of the attorney as well to his client 
as to the court, if he believed an irregularity had been com¬ 
mitted, to have called the attention of the court to it. It 
seems that Mr. Felder prefers to attribute deliberate inten¬ 
tion to the Judge without even having given him the oppor¬ 
tunity to correct the error, if error it was, of which he was 
wholly unconscious. 


JURY DRAWN AT MOUNT AIRY. 

Mr. Alexander Akerman testifies (Rec. 1089) that on 
one occasion the Judge had the jury box of the Eastern 
Division sent to his summ^er home at Mount Airy in the 
Northern District, and wrote to him that on account of his 
health, he desired the Assistant District Attorney to go up 
there to be present at the drawing of the grand jury. This 
for the fall term, 1912, of the court to be held in Savannah. 
This is cited as an illegal and corrupt act on the part of the 
Judge. Mr. Akerman states that he doubted the authority 
of the court to draw a jury outside of the District, and re¬ 
ported his views to the Attorney General. The latter 
authorized him to send his assistant to Mount Airy, which 
was done. 

As already referred to, the Act of 1879, notwithstanding 
the contention of Mr. Lawrence and Mr. Osborn, and others, 
does not reqire a jury to be drawn in open court, nor does 
it state where juries are to be drawn. The simple require¬ 
ment is that it be drawn in a public manner. The rules 
of the court already referred to, which were prescribed by 
the Honorable John Erskine, predecessor of Judge Speer, 
of the District Court, and by Mr. Justice Woods, provided 
for the drawing of juries in vacation, and it was deemed by 
them a public drawing if it be done in the presence of the 
District Attorney and Marshal and Clerk. Certainly the 
course of the Judge in calling for the presence of the United 
States Attorney at the drawing, and the other officers of 
the court, which the record shows, were present, before he 
would make the drawing, indisputably shows that it was 



245 


the intention of the Judge to have a public drawing, or to 
have a sufficient number of reputable officers and persons 
present who would be able to testify to the fairness of the 
drawing. Evidently the Attorney-General did not take the 
view of Mr. Akerman, or he would not have directed the 
assistant to be present. 

The view of Messrs. Osborne and Lawrence relative to 
the contention that the jury must be drawn in open court 
and of Mr. Akerman that it cannot be drawn out of the 
District, seems to be founded upon the theory that the '‘pub¬ 
lic” drawing prescribed in the Act of 1879, was intended 
to afford every defendant and litigant the opoprtunity of 
being present at the drawing, and that it gave to them a 
legal right which they did not possess at common law. This 
is not the view entertained by Judge Speer, nor by Judge 
Erskine and Mr. Justice Woods; which is that the drawing 
must be miade in the presence of a sufficient number of 
reputable persons to prevent the commission of any fraud 
or improper conduct. The Statute does not require any 
particular notice to be given prior to the drawing. The 
course taken by Judge Speer to have the Assistant United 
States Attorney and others present at the drawing at Mount 
Airy, absolutely negatives any idea of wrong doing , on his 
part. 

The orders for the drawing of the panel of jurors drawn 
were entered on the minutes of the court at Savannah. It 
does not appear that there was ever any challenge of the 
validity of the grand jury, and certainly no wrong has been 
done to any one. 

The gravamen of Mr. Akerman’s criticism arises over the 
fact that the Judge performed the function of Judge in 
the Northern District of Georgia instead of the Southern 
District of Georgia. 

If the objection is good, then no Judge can sign any order 
outside of the District for which he is appointed. It is the 
view of Judge Speer that certainly interlocutory orders can 
be signed by the Judge in matters pending in his District, 
even though he be outside of the District, as for instance 
where a District Judge is presiding in the Circuit Court of 


246 


Appeals in other Districts, or where he is assigned to hold a 
court for a Judge in some other District. In fact that this is 
universally done by Judges is well known; presumably 
in other Districts, or where he is assigned to hold a court 
for a Judge in some other District. In fact that this is uni¬ 
versally done by the Judges is well known; presumably the 
other Judges, like Judge Speer, believe they have that 
authority. The practice in very many of the Districts is 
that the Judge simply directs the Clerk and jury commis¬ 
sioner to draw the juries from the jury box, and that func¬ 
tion is performed by those officers entirely independent of 
the Judge, and usually in the Clerk's office. A recent in¬ 
stance is where District Judge Foster, of Louisiana, pre¬ 
siding in the United States Circuit Court of Appeals at At¬ 
lanta, Georgia, in the Northern Division and District, 
passed an order directing the Clerk at Augusta to draw a 
jury from the jury box of the Northeastern Division of 
the Southern District for the court to be held at Augusta 
by Judge Foster. That occurred in 1913. 

A similar instance occurred in February, 1914. Judge 
W. B. Sheppard, of Florida, who had been designated for 
the Southern District of Georgia, was holding court in 
Macon, and desiring to hold court the following week at 
Valdosta in the Southwestern Division, directed the Clerk 
at Valdosta to draw a jury for that session of the court, 
which was done. 

There are certain judicial matters which it is generally 
understood require disposition in open court at a term of 
court, such as jury trials and final judgments at law, and 
final decrees in equity. 

The rules of the Supreme Court only provide that inter¬ 
locutory decrees and proceedings can be disposed of other¬ 
wise than in open court. Notwithstanding this, it has been 
ruled that where both parties consent, a final decree in 
equity may be signed by the Judge out of the District and 
entered at a term, which would be binding between the 
parties. 

We think the above is sufficient reply to the criticism of 
any wrong intention on the part of Judge Speer, or abuse 


247 


of his authority in drawing one grand jury at Mount Airy 
in the course of twenty-nine years of judicial service. 


THE JURY IN THE MILLER CASE. 

Mr. S. B. Adams criticises the action of Judge Speer in 
making the order which directed the Clerk and jury com¬ 
missioner to make up a jury box from which was drawn 
the jury which tried the case of the United States versus 
Miller, and others, charged with a violation of the Inter¬ 
state Commerce laws. The criticism made is that the order 
undertook to specify how many jurors the jury commis¬ 
sioners should take from- each of the counties mentioned in 
the order. The contention of Mr. Adams, who represented 
some of the defendants in that case, is that the Judge had 
no right to limit the jury commissioners in the particular 
number of jurors to be taken from any particular county. 

Section 802, Revised Statutes, provides that jurors shall 
be returned from such parts of the district from time to 
time as the court shall direct so as to be most favorable to 
an impartial trial, and so as not to increase the unneces¬ 
sary expense or unduly to burden the citizens of any part of 
the District with such services. 

Judge Speer thought that the above provision of the 
Statute gave him the authority to fix the number of jurors 
to be taken from the respective counties, and the order was 
made without respect to any particular case, but had ref¬ 
erence to the general business of the term. It does npt 
appear that the supposed authority was exercised by the 
Judge except in that particular instance. The numbers 
assigned to each county were approximately based on the 
last census. On appeal, the Circuit Court of Appeals took 
the view that the restriction imposed by the Judge on the 
jury commissioners relative to the particular number of 
jurors which should be taken from the county was not 
authorized by law, but held that it was a mere irregularity 
of which the defendants could not avail themselves without 
showing prejudice which they had not done. (199 Fed., 
p. 903.) 



248 


PEONAGE CASES. 

The offense of peonage which consists of an involuntary 
form of servitude prohibited by law, presents many per¬ 
plexing problems to the white people of the South in deal¬ 
ing with unskilled negro labor on the farms, in the saw-mills, 
and around turpentine plants. The principal laborers in 
these industries are negroes, some of whom are lazy, thrift¬ 
less and unreliable, and after obtaining money in advances 
to satisfy their immediate wants on a promise to pay for 
the same in labor, they abandon their contracts and seek 
other advances from other employers. This evil has led to 
the enactment of contract labor laws in many of the South¬ 
ern States, some of which have already been declared un¬ 
constitutional, and others are of doubtful validity. These 
contract labor laws, together with the prejudice engendered 
in the minds of the white people against the shiftless and 
unreliable members of the negro race furnish oppor¬ 
tunity and temptation to the not overscrupulous em¬ 
ployers needing labor to commit the offense of peonage. The 
universal interest of all employers to have their employees 
carry out their contracts, and the difficulties which they 
frequently have in this respect with some unreliable negro 
laborer makes them apprehensive as to the general effect on 
this class of negro labor of a rigid enforcement of the laws 
against peonage. For these reasons the enforcement of the 
peonage laws are not generally popular with the employers 
of this class of labor. 

It is this condition of affairs which is sometimes taken 
advantage of by the selfishness, avarice and reckless disre¬ 
gard of human rights on the part of some white men in 
dealing with the more ignorant and weaker members of the 
inferior race, and leads to the development of traffic in human 
beings, confinement in stockades, the applying of the lash 
and other acts of cruelty and inhumanity, shocking to the 
sensibilities of a liberty-loving people. The extreme cases 


249 


like this where the facts are all developed, the juries will 
generally convict. In other cases where there is no proof 
of physical violence or actual confinement, they are less apt 
to convict, notwithstanding the injustice and wrong done 
the peon, in the restrain of his liberty and the enforcement 
of involuntary servitude. Especially is this true where the 
jurors come from among those employing this class of labor. 
But it is the duty of the court to enforce the laws of the 
land regardless of whether they are popular or unpopular. 


CHAUNCEY CASE. 

Mr. Felder, who represented the defendants in this case, 
complains that while he was making his argument in the 
way of an opening statement to the jury he was repeatedly 
interrupted by the court, at first because he was making 
an argument attacking witnesses in advance of the intro¬ 
duction of evidence, instead of an opening statement of his 
case, and finally because of his appeal to the race prejudice 
of the jurors by the repeated use of the words “nigger, 
nigger, nigger” in referring to the parties whom it was 
charged the defendants had held in peonage. Mr. Felder’s 
own account shows that he was clearly, persistently and de¬ 
fiantly violating all the proprieties of a fair trial. It is the 
duty of the trial judge to police the trial and to use such 
means as are necessary to enforce a fair trial and failure on 
his part to faithfully perform this duty, attended sometimes 
with unpleasantness, often causes greater wrong in the 
miscarriage of justice than the harm done to the wounded 
pride of the overzealous and too persistent advocate. 

A similar rebuke to counsel for appealing to race preju¬ 
dice administered by Judge Speer in the case of Battle vs. 
United States, 209 U. S., 39, was approved by the United 
States Supreme Court as follows: 

“Finally an Exception was taken to an interrup¬ 
tion of the Judge, which did not tend to degrade the 
administration of justice. The reference was to an 
appeal to race prejudice and to such language as 



250 


this—‘You will believe a white man not on his oath 
before you will a negro who is sworn. You can 
swallow those niggers if you want to, but John Ran¬ 
dolph Cooper will never swallow them.^ The inter¬ 
ruption was fully justified.'' 


CRAWLEY-MCCLELLAN CASE. 

United States vs. W. F. Crawley and J. T. McClelland, 
charged with peonage, was discussed by W. W. Osborn, 
A. A. Lawrence, J. Lee Crawley, Jno. C. McDonald and 
W. M. Toomer. The complaint made is that the Judge 
coerced the defendants to plead guilty by his remarks over¬ 
ruling a motion to direct a verdict for the defendants, by 
certain questions he asked Ed McRee, a witness who had 
pleaded guilty to holding in peonage the very parties that 
Crawley and McClelland were indicted for returning to a 
condition of peonage, and by making overtures to the de¬ 
fendants' counsel that he would make the sentence lighter if 
they would plead guilty. 

Mr. Toomer, leading counsel for the defendants, was 
until recently, residing at Waycross, Ga. He has been a 
member of the Georgia Legislature. Since his removal to 
Jacksonville, Fla., he has on several occasions returned to 
Georgia under the authority of the Attorney-General of the 
United States in the capacity of Special Assistant District 
Attorney in the prosecution of anti-trust cases. He says 
(Committee Record, p. 1713), “I was astounded to learn 
that this transaction was to be made the subject of inquiry 
in these proceedings." 

About the year 1904, six indictments were returned 
against T. J. McClellan, and four indictments against W. 
F. Crawley and T. J. McClellan, charging them with arrest¬ 
ing or returning to a condition of peonage, the several 
parties named in the indictments. 

Demurrers were interposed and argued at length, the de¬ 
cision of Judge Speer overruling the demurrers will be 
found in 127 Fed. Rep., 971. 



251 


The facts as developed on the trial of the case were that 
McClellan was the Sheriff of Ware County, and also jailer. 
Crawley was a lawyer. Henry Brunage and Dave Smith, 
two colored boys, were arrested and tried for stealing a 
watermelon, and were convicted before the Judge of the 
County Court of Ware County and sentenced to imprison¬ 
ment in Ware County, with no alternative of fine. Mr. E. 
J. McRee was asked to come for the boys by Crawley. 
McRee testified: ‘T received a letter from Mr. Crawley, 
which I cannot find after search, in which he asked me to 
come to Waycross, that there were some boys there who 
wanted to come to my place.^’ McRee went to Waycross 
and accompanied by Crawley and McClellan went to the jail 
where the two boys were confined, and also found outside 
of the jail Jeff Brunage, a brother of one of the boys in jail. 
Jeff was not charged with any offense, but “was just out 
there interceding for them,,” McRee gave a check for these 
boys, the check being dated Aug. 6, 1903, for $65, payable 
to the order of J. J. McClellan, payable at the Citizens Bank 
of Valdosta, and endorsed by T. J. McClellan. This was to 
cover the fee of Mr. Crawley, the lawyer, and the jail fees 
of Mr. McClellan. Although in jail under commitment, and 
no provision made for release upon payment of a fine, and 
no order of any court authorizing their release, the two boys 
were turned over to Mr. McRee, and not only were they 
carried to the plantation of the McRees at Kinder Lou, but 
the little brother who was “interceding for them” w^as also 
carried to the plantation, and E. J. McRee afterwards 
pleaded guilty to holding all three in peonage. 

Another of the indictments charged a similar sale of 
Lula Frazier, who who had been arrested for adultery, but 
on the hearing before the County Judge, he decided that 
if she was guilty at all, it was of bigamy, of which offense 
his court did not have jurisdiction. While she was in jail, 
with no charge against her, Mr. Crawley, her lawyer, tele¬ 
phoned to the McRees, as follows: “E. J. McRee, Valdosta, 
Ga. Come to Waycross for woman. W. F. Crawley.” Mr. 
Frank McRee went to Waycross for her, and was accom¬ 
panied to the jail by Crawley and McClellan, the latter 


252 


being the jailer. McRee gave a draft for $50 to Crawley, 
and the woman was released and carried to the Kinder Lou 
plantation in Lowndes County. This draft was dated Aug. 
27, 1902, payable to W. F. Crawley, for $50, drawn on the 
Citizens Bank of Valdosta, and signed by Kinder Lou Mills, 
by F. I. McRee. 

Other checks were tendered in evidence, in payment for 
other negroes, one for $88, payable to T. J. McClellan, for 
George Davis and Ed Hardy, dated July 8, 1902, George 
Davis carried his wife with him to the Kinder Lou plan¬ 
tation. Another check for $40, dated Aug. 11, 1902, payable 
to T. J. McClellan, in payment for John Wesley Bowen. A 
third check was dated December 15, 1902, payable to T. J. 
McClellan for $240, for “four men and one woman.’" 

The two boys charged with stealing a watermjelon were 
kept at McRees for six months and ten days each, and Lula 
Frazier, the woman who had not been convicted of anj^ 
offense, was kept there seven months. 

The McRees at that time operated a large plantation in 
Lowndes County, about seventy miles from Waycross, where 
these parties were confined in jail. They also operated a 
large crate factory. About two hundred hands were em¬ 
ployed by them, many of them obtained in the manner above 
described. The negroes were worked under guard, locked 
up at night, whipped by overseers, and made to work out 
the money advanced to them. They were not permitted to 
leave the plantation. Some escaped and were captured, 
some made good their escape. The Prison Commission of 
Georgia made an investigation of the conditions at the 
McRee plantation a short time before these indictments 
were returned, and as Mr. E. J. McRee stated, “did not ex¬ 
onerate us entirely.” 

This is a partial outline of the testimony of the Gov¬ 
ernment. The District Attorney tendered in evidence the 
pleas of guilty of the McRee brothers to a number of in¬ 
dictments charging the holding of numerous parties in peon¬ 
age, including the parties named in the indictments against 
Crawley & McClellan. On objection, the court reserved its 
decision on this point, but admitted the evidence of McRee 




253 


as to the actual conditions on his plantation. The boys also 
testified as to their treatment and as to conditions there. A 
motion was then made by the defendants for a verdict for 
the defendants. Their principal argument being that Craw¬ 
ley and McClellan did not know that the McRees were hold¬ 
ing persons in peonage and therefore did not knowingly 
send the negroes to a condition of peonage. Judge Speer 
then made the remarks set out in the Committee Record, p. 
1528, which Mr. Osborne denominates a “stump speech,'’ 
and which it is asserted terrified the defendants into plead¬ 
ing guilty. It may be that a narration of the Government’s 
evidence by the court may have impressed them more 
strongly than they had formerly believed, that they were 
guilty. 

Messrs. J. Lee Crawley, A. A. Lawrence, W. W. Osborne, 
and Jno. C. McDonald, in their evidence, given from mem¬ 
ory after a lapse of ten years, speak of efforts being made 
by Judge Speer to coerce the defendants into a plea of guilty, 
and strive to leave the inference that such overtures were 
made through Mr. Robert M. Hitch, an attorney of Savan¬ 
nah, and J. N. Talley, the Judge’s stenographer at that time. 
There is no evidence that J udge Speer made any suggestion 
to either of those gentlemen about the case, and the witnesses 
are widely variant as to such alleged overtures. For instance, 
Mr. Osborne testified “That during the trial, early in the 
morning session thereof, Mr. Talley, who was then court 
stenographer, talked several times to Mr. Lee Crawley, Mr. 
Will Crawley’s brother, suggesting a plea. . . . Now, all 
this time I was trying the case in this court-room Mr. Lee 
Crawley-was outside. . . . three times during the day, when 
Mr. Crawley would come in and we would have to stop and 
turn around to hear these suggestions about what we ought 
to do in our own case.” Mr. Osborne probably overlooked 
the fact that Mr. J. N. Talley was all this time sitting at the 
table in front of him reporting the evidence, and could not 
very well be conferring with Mr. Lee Crawley on the out¬ 
side. Mr. Osborne also states that the Judge in that case 
held three sessions a day, morning, afternoon and night. 
As Mr. Talley and Judge Speer were stopping at different 


254 


hotels it is obvious that little time was available for such 
conferences during the trial. 

Mr. Talley was in the court-room, and was sworn as a 
witness, but was not asked as to this transaction. Mr. 
Robert M. Hitch, an eminent lawyer of Savannah, who 
is said to have first suggested the advisability of a plea of 
guilty, was also available as a witness, but there is no sug¬ 
gestion in the evidence that Mr. Hitch had spoken a word 
to Judge Speer about the case. 

Mr. Toomer, the leading counsel for the defendants, 
Crawley and McClellan, and the attorneys who called on 
the Judge in his chambers, after the adjournment of court 
in the afternoon, thus gives his views of the matter (Com¬ 
mittee Record, p. 1712) : 

‘T think that Judge Speers’ idea was that these were 
young men, and that the status was novel, as I say, and the 
whole idea that he was to communicate his willingness to 
deal with them leniently in that the first instance. I was 
astounded to learn that this transaction was to be made the 
subject of inquiry in these proceedings. I think they (my 
clients) got the impression from the utterances made by 
Judge Speer from the bench that all sorts of things might 
happen to these young men if they were convicted. I never 
thought so; I never saw a man in my life more vigorous 
in endeavoring to have juries declare the truth, and to as¬ 
certain himself the law. But I never in my whole life 
knew a more humane Judge than Judge Speer in final ex¬ 
ecution, and I did not have any idea he would punish them 
severely. He did not, positively, did not give me the im¬ 
pression that if they did not do it (plead guilty) he would 
punish them for not doing it.” 

The prevalence of peonage, the novelty of its prosecution, 
the prejudice against the enforcement of the law in the 
popular mind, all naturally led the court to believe that a 
plea of guilty, with a fine, would have a more beneficent 
effect in calling the attention of the public to the provisions 
and purposes of this statute and be more persuasive and 
effective in causing the people to conform to the spirit of 
the law, without the necessity of numerous prosecutions, 


255 


than would be the case of a verdict of guilty, where guilt 
was unquestionable, and the severe penalty of the law im¬ 
posed, or a verdict of not guilty, because of local prejudice 
against the law. It is difficult for an impartial mind to read 
the record in these cases and reach the conclusion that the 
defendants were not guilty. The Judge thought this guilt 
due rather to ienorance of the neonage laws, than to a wil¬ 
ful disregard of the provisions of those statutes prohibit¬ 
ing the enforcement of involuntary servitude. Believing 
this, he was fully justified in making all the concessions 
which Mr. Toomer, the leading counsel for the defendants, 
states that he made to him, in the conversation at night, 
at the close of the Government’s case. In the administra¬ 
tion and enforcement of the law by the court, the general 
welfare of the people is of vastly more concern than the 
mere professional pride of able criminal lawyers defend¬ 
ing parties charged with crime. The pleas of guilty in 
these cases were voluntary, the punishment was light, the 
attention of the public was called to the provisions of the 
peonage laws, and the condition of many unfortunate mem¬ 
bers of that race, whose lot has been cast with ours, was 
unquestionably greatly ameliorated without the. expense, 
burden, and inconvenience of wholesale prosecutions. 

In this connection, attention is called to. the following 
estimate of Judge Speer by Mr. Toomer, leading counsel 
for the defendants in these cases, taken from Committee 
Record, pages 1728-1730: 

Mr. Callaway: Would you or not express your opinion 
as a lawyer practicing in these courts, on Judge Speer as 
a Judge, as an official? 

Mr. Toomer: I will do so. I have, while I heard some 
slight testimony to the contrary, always had the impres¬ 
sion that Judge Speer was a very hard worker. He cer¬ 
tainly worked out very promptly and thoroughly every case 
I ever had any personal knowledge of, when I was repre¬ 
senting the Government, as I have done in a number of 
cases, or the defendants, or in civil cases. I think that the 
Judge is a Judge of commanding capacity. I think that his 
capacity as a lawyer, and as a literary man as well, is simply 


256 


superb. I have never been able to convince myself, after 
twenty years of my knowledge—and he has never done me 
a financial favor in his life—I have never been the recip¬ 
ient of an appointment that meant one dollar to me, from 
him, I have tried cases that I lost in his court—but I have 
never been able to think that Judge Speer was not person¬ 
ally honest and judicially honest, and adding to that the 
opinion that I entertain in regard to his capacity, I am very 
glad indeed to answer that question. I will go further. 
Judge Callaway, and say this, that while there are some 
men, we all have our peculiarities, I know some very dis¬ 
tinguished members of this Bar who have grievances of 
manner, and this and that and the other kind against 
Judge Speer, my own opinion is that the rank and file of 
the plain people and business men of this district, find in 
Judge Speer and in his court a perfect terror to evildoers, 
not because of the severity of sentence he is going to im¬ 
pose, but because of the certainty of their conviction in his 
court. When I lived in Georgia fifteen years ago, I lived 
one hundred miles away from here, and nearly two hun¬ 
dred from Macon, but I know the Judge and know of him 
pretty well, and practiced a lot in his court. 


NOT DIRECTING JURY TO RETIRE WHEN PASSING ON MOTION 
OF COUNSEL. 

One of the criticisms of alleged unfairness on the part of 
Judge Speer is that when in certain cases the defendants' 
counsel at the conclusion of the evidence made a motion to 
instruct the jury to render a verdict of not guilty for want 
of sufficient evidence to warrant the submission of the case 
to the jury and requested the Judge to have the jury retire 
during the argument of counsel and the delivery of the 
opinion of the court on the motion, the Judge did not direct 
the jury to retire. 

There is no rule of law requiring that the Judge direct 
the jury to retire in such cases. At best the matter is left 
to the sound discretion of the Judge. In the Federal courts 



257 


where it is the duty of the Judge to sum up the evidence, in 
general, there is no sound reason why the jury should be 
required to retire. Whether the jurors are enlightened at 
that time by the argument of counsel and the opinion of the 
court as to the prima facie bearing of the testimony or that 
duty is reserved until after the final arguments and in the 
charge of the court, they are certainly entitled to have the 
same enlightenment and the same views expressed as to the 
prima facie bearing of the evidence before the trial is over, 
at one time or another. Certainly if the defendants have 
a meritorious attack on the Government’s testimony along 
the lines which the jury are entitled to consider, the oppor¬ 
tunity afforded the jury to have the views of the defend¬ 
ant’s counsel stated in advance of the final argument is ad¬ 
vantageous for them. In those States where the court is not 
allowed to sum up the evidence or express the slightest 
opinion as to its bearing and are allowed only to state ab¬ 
stract propositions of law, and where the trial proceeds 
through the fog of conflicting legal technicalities, raised by 
counsel, like a ship without a compass, sailing over an ocean 
through mist, a different rule may prevail. It is the opinion 
of Judge Speer that a fair trial is promoted in general b> the 
course he has pursued in respect to the matter criticised. 


WITH HAVING VIOLATED SECTION 67 OF THE JU¬ 
DICIAL CODE IN ALLOWING HIS SON-IN-LAW, 
MR. A. H. HEYWARD, JR., TO BE APPOINTED 
AND EMPLOYED IN DUTIES IN HIS COURT. 

Mr. Heyward is a member of the Bar, residing in Macon, 
Georgia. He began the practice of his profession in July, 
1905. He has never been appointed receiver or employed 
in any duty in the District Court by Judge Speer. He has 
been appointed receiver in bankruptcy cases by referees in 
bankruptcy, and has been elected trustee in bankruptcy 
cases by the creditors. His compensation as receiver, prior 
to the amendment providing for such compensation on a 
percentage basis, was invariably fixed on reference to the 



258 


referee as Special Master, and in no case where exceptions 
were filed to the Master’s finding did Judge Speer pass upon 
such exceptions except by consent of counsel. 

According to the records in the Clerk’s office, during the 
period from January 1, 1905, to Deeember 15, 1913, eight 
years, 833 bankruptcy petitions were filed in the Western 
Division of the District, which includes Macon. During 
those eight years, as appears from the records, 220 re¬ 
ceivers were appointed. Mr. Heyward was appointed by 
the referee, Mr. Alexander Proudfit, in 20 cases. In 13 of 
the same cases the creditors elected Mr. Heyward trustee, 
and he was elected trustee by the creditors in 5 cases in 
which he had not previously been appointed receiver. Thus 
he was trustee in 18 cases. During the same period of eight 
years, according to the same records, trustees were elected 
by creditors in 822 cases, and as just stated, Mr. Heyward 
was trustee in 18. 

From the list furnished the Committee, it will appear 
that Mr. Heyward was appointed receiver by Max Isaac, 
referee, at Brunswick in four cases, in three of which he 
was also elected trustee by the creditors; that he was ap¬ 
pointed receiver once by W. C. Lane, referee at Valdosta, 
and was elected trustee one time in that the Southwestern 
Division of the District; and that he was appointed re¬ 
ceiver one time by Clayton Jones, referee at Albany, and was 
elected trustee by creditors one time in that the Albany 
Division of the District. Thus the total number of cases 
in the entire Southern District of Georgia during the period 
of eight years, in which Mr. Heyward acted as receiver or 
trustee, or in both capacities, was 33. The exact number of 
cases filed in the District for that period is not available, 
but must be in the neighborhood of 1,800. 

Judge Speer has never suggested or intimated to any 
referee that Mr. Heyward should be appointed receiver. 

The only communication Judge Speer has had with any 
of the referees, is the following correspondence (Steno¬ 
graphic Record, p. 1302) : 


259 


Macon, Ga., July 25th, 1905. 

Dear Judge: I write to make this inquiry, should an 
opportunity occur, would there be any impropriety in my 
appointing Hasell as custodian or receiver. It would afford 
me much pleasure to give him some experience in m^atters 
of this character. I still have the package I mentioned 
to you in my office. Don’t you need it? It is something 
extra fine. It will, however, keep. Your friend, 

ALEXANDER PROUDFIT. 
Honorable Emory Speer, Highland, N. C.” 

‘'Highlands, N. C., July 28th, 1905. 

My Dear Aleck: With regard to your inquiry as to 
Hasell, you had best look at the Statute and determine for 
yourself. I haven’t got it here. Certainly it would seem 
that if a trustee thought proper to employ him as an at¬ 
torney, he ought not to be debarred of the privilege of 
earning his livelihood because he is my son-in-law. I, how¬ 
ever, have never attempted to control trustees in the selec¬ 
tion of counsel, and would certainly not do so in his case. 
Of course I will be very grateful for anything you can 
properly do for him. Do not keep that case of whiskey 
for me, my dear Aleck, “Give strong drink to the perish¬ 
ing,” says the Proverb. I am yet in the bloom and flower 
of youth. Love to your sweet wife. 

Ever your friend, 

EMORY SPEER.” 

In 1888 Congress passed an Act in the following termjs: 

“No person related to any justice or judge of any 
court of the United States, by affinity or consan- 
quinity within the degree of first cousin, shall here¬ 
after be appointed by such court or judge to, or em¬ 
ployed by such court or judge in any office or duty 
in any court of which such justice or judge may be a 
member.” 

Act of August 13, 1888, 

4 Fed. Stat, anno, page 69. 

At the time that this Statute was passed the subordinate 
Federal Courts of Original Jurisdiction were the Circuit 
Court and the District Court. The Circuit Court could be 
held either by the Justice of the Supreme Court assigned to 


260 


the Circuit or the Circuit Judge, or the District Judge. The 
Circuit Judge of the Circuit was the Judge of the Circuit 
Court, and the other judges, that is, the Justice of the Su¬ 
preme Court assigned to the Circuit, and the District Judge 
of the District in which the Circuit Court sat, were author¬ 
ized to preside in the Circuit Court under given circum¬ 
stances. The Justice of the Supreme Court and the District 
Judge were not members of the Circuit Court within the 
meaning of the Statute. The true interpretation to be placed 
upon the word “member” in the Statute is one of the judges 
or justices of a given court created and organized with one 
or more members as component parts constituting and mak¬ 
ing up the organization of the court. 

In 1898 the Court of Bankruptcy came into existence. 
Under the Bankruptcy Act certain powers and jurisdiction 
are conferred upon the Judge of the District Court. The 
Act provides for judicial officers denominated referees. Sec¬ 
tion 34. The qualifications of referees are fixed in the Act. 
Section 35. The jurisdiction of referees is also declared in 
express terms. Section 38. It requires only a cursory view 
of the provisions of the Bankruptcy Act which relate to 
referees to see that the referee is given judicial powers of 
a broad nature, and under given circumstances may exercise 
some of the same powers which are conferred upon the Dis¬ 
trict Judge, and the referee is not only a judge, but he is 
the presiding officer of a court of'a given and prescribed 
jurisdiction. It is, therefore, not surprising when we find 
that the Bankruptcy Act itself declares- that the word 
“courts” shall mean the Court of Bankruptcy, in which the 
proceedings are pending, and may include the referee. Sec. 
1 (7). 

Under given circumstances the referee is clothed with 
the power to appoint a receiver, and the receiver thus ap¬ 
pointed is an officer of the referee’s court, and derives 
his authority from the judgment of the referee mak¬ 
ing the appointment. It is true that the referee holds his 
appointment under the Judge of the District Court, and by 
the terms of the Act the Judge of the District Court is pro¬ 
hibited from calling to the office of referee one related to 


261 


him within the degree of first cousin. But the referee once 
appointed becomes himself a judge of a court of the United 
States and subject to all of the disabilities and limitations 
placed upon such judges by the Act under consideration. 
The referee, therefore, cannot appoint a receiver who is re¬ 
lated to him within the degree of first cousin, for the rea¬ 
son that he is a judge of a court of the United States, and 
the Act declares that no judge of any court of the United 
States can do this. If this view of the matter is not correct 
and the limitation under the Act upon the referee is to re¬ 
strain appointments of persons related within the prohib¬ 
ited degree to the Judge of the District Court, then there is 
nothing in the law which would prevent the referee from 
appointing his own kinsman within the degree set forth in 
the Act to any office or duty in his own court. The evil 
sought to be remedied by the Act would, therefore, still con¬ 
tinue so far as this subordinate Federal Court is concerned 
so long as the referee kept within the letter of the law (as 
so construed and did not call to any office or duty in his 
court a kinsman of the Judge of the District Court and all 
of the offices and duties of his court could be performed by 
his own near kinsmen. 

Prior to the abolition of the Circuit Court the Judge of 
the Circuit Court could appoint to an office or duty in that 
court a kinsman, within the degree set forth in the Act, of 
the District Judge, and the District Judge could in like 
manner appoint in his court a kinsman of the Circuit Judge, 
or either could appoint a kinsman of the Justice of the 
Supreme Court of the United States. But the Circuit Judge 
could not appoint his own kinsman to an office or to the 
performance of a duty in the Circuit Court. The prohibi¬ 
tion in the Act is upon the judge of the court who appoints 
the officer or calls to the duty, and there is nothing inj the 
letter or the spirit of the Act which prevents the judge of a 
court of concurrent jurisdiction from appointing a kins¬ 
man of the judge of the other court, nor the judge of a su¬ 
bordinate court, like the court of the referee, appointing a 
kinsman of the District Judge, notwithstanding that in the 
one instance each judge n^ay exercise the powers of the 


262 


other under given conditions, and in the latter instance the 
referee holds the appointment under the District Judge, 
and at times exercises powers which tlie District Judge 
himself under other conditions would have authority to ex¬ 
ercise. 

On January 1, 1912, the new Judicial Code went into 
effect. It is provided therein: 

'‘No person shall be appointed to or employed in 
any office or duty in any court who is related by af¬ 
finity or consanguinity within the degree of first 
cousin to the judge of such court.” 

Judicial Code, §67. 

While this changes the language of the old law, the pur¬ 
pose of the provision in the Judicial Code is simply to con¬ 
tinue of force the rule and principle of existing law, and 
what has been said in interpretation of the old law applies 
with equal force to the present law, although some of the 
illustrations would be inapt, for by the Judicial Code the 
circuit courts have been abolished. The prohibition in the 
new' law is that no person shall be appointed or employed 
in any office or duty in any court, etc. The referee’s court 
is a distinct and separate court for certain purposes from 
the District Court of the district, and the prohibition in the 
Statute operates upon the referee when he is within the 
bounds of his jurisdiction. He is the judge of a court cre¬ 
ated by law, he is the "judge of such court” within the 
meaning of that expression as it is found in the Statute. 

The result of this is that the referee is prohibited from 
appointing his kinsman within the degree of first cousin, 
but he was not prohibited from appointing a person other¬ 
wise capable, simply for the reason that he was related 
within the degree of first cousin to the Judge of the District 
Court. But if he is, the prohibition is directed to the 
Referee. 

Under the Bankruptcy Act trustees are not appointed by 
the referee or by the judge, except under given circum¬ 
stances where there is a failure to elect or the like. The 


263 


trustee is elected by the creditors, and represents them. 
The choice of the person to be selected by the creditors as 
their representative is left under the Statute to the cred¬ 
itors, and the Referee has only authority to disapprove an 
unwise selection or to make a selection in the event the 
creditors fail to choose. While the trustee is an officer of 
the court in a sense and he performs a duty in the court, he 
is an officer who holds his office not by appointment from 
the court as a general rule, but by selection of the creditors 
of the estate, and any time that he may be called to the 
position of trustee by the referee is exceptional. 

According to the evidence, on every occasion on which 
Mr. Heyward was appointed receiver he was appointed by 
a referee, and every instance in which he was chosen as 
trustee he was chosen by the creditors, and therefore he 
never owed his appointment in one instance, or his selec¬ 
tion in the other instance, to any act of the Judge of the 
District Court. 

But, it is said that Judge Speer “permitted his son-in-law” 
to be appointed receiver by the referees of his court and to 
be selected trustee in bankruptcy cases. 

There is no evidence whatever, not even a suggestion, 
that Judge Speer ever requested a referee to appoint his 
son-in-law, or suggested his appointment, or suggested to a 
referee the propriety of Mr. Heyward being chosen as a 
trustee by the creditors in a bankruptcy case. On the 
contrary, the record distinctly shows that Judge Speer 
never in any way attempted to control or influence the 
referees appointed by him in the matter of appointments 
made by them. 

It is true that the Judge of the District Court has the 
power to review the action of the referee in certain matters 
that come before him. If there had been anv obip-f-- to 
the appointment of Mr. Heyward on account of relation¬ 
ship to the Judge, or other reason, objections could have 
been made to the Referee, and if the Referee, after consid¬ 
ering the objection had overruled the same, the Judge would 
have had power to review such a ruling by the referee and 
reverse his decision if the appointment was not consid- 


264 


ered legal and proper. There is no evidence that any objec¬ 
tion was ever made by any one to the appointment of Mr. 
Heyward. If objection had been made, the mlatter should 
have been brought before the Judge on a formal petition 
for review as in other cases where decisions of the referee is 
the subject of complaint by persons interested in the cause. 
It certainly cannot be maintained that any wrong was done 
by Judge Speer in reference to the election by Mr. Heyward 
as trustee by the creditors of a bankrupt. He had no con¬ 
trol over the creditors or the creditors’ meeting. He did 
not attempt to influence or control the creditors of any 
bankrupt in the matter of the selection of their trustee, and 
if at a meeting of the creditors of a bankrupt, Mr. Heyward 
was duly elected, the charge that Judge Speer permitted 
the election could not be well made. 

To conclude, the tribunal presided over by the Referee is 
either a court or it is not a court. If it is a court, the prohi¬ 
bition in the Statute in reference to appointments is controll¬ 
ing and the Referee must not appoint his own near kinsman. 
If it is not a court, within the meaning of this Statute, the 
Referee can surround himself in all bankruptcy cases with 
his near relatives in offices and in employment and is safe 
in this course so long as the person appointed or employed 
is not related within the degree of first cousin to the Judge 
of the District Court from whom the referee holds his com¬ 
mission. 


THE REFUSAL OF JUDGE SPEER TO ENTER ORDERS 
OF NOLLE PROSEQUI OF INDICTMENTS FOR 
INDICTMENTS FOR VIOLATIONS OF THE 
INTERNAL REVENUE LAWS. 

Under the Statutes of the United States providing dif¬ 
ferent forms of taxation, under what are commonly known 
as the Internal Revenue Laws, an occupation tax is laid 
upon persons engaged in the sale of spirituous and other 
liquors. 



265 


One engaging in such business and having failed to pay 
the tax required is permitted voluntarily to absolve him¬ 
self from further liability by paying the tax required with 
a super added sum as penalty which is fixed in the law. 

In order to enforce obedience to and respect for the law, 
the failure to pay the tax is declared to be a crime and the 
party violating the law is subject to indictment. So long 
as the authorities of the Government are in charge of the 
collection of the revenue and fail to invoke the penal pro¬ 
visions of the law and call into existence the judicial de¬ 
partment of the Government, the matter of settlement with 
persons who have violated the law, is within the absolute 
control of the Treasury Department, but when the func¬ 
tions of the Judicial Department are called into play, either 
on the initiative of the Treasury Department or the De¬ 
partment of Justice, or of som.e citizen who is permitted 
under the law to institute prosecutions for violations of the 
law, the matter then becomes one to be dealt with by the 
courts in accordance with law and the prescribed rules reg¬ 
ulating the administration of the law in the courts. 

The purpose of appealing to the judicial department of 
the court in such cases is two-fold, to enforce obedience to 
the law and to aid in the collection of the revenue which the 
Government is losing. The latter is merely incidental to 
the action of the court in impressing upon the people the 
necessity to obey the law. 

When an indictment is preferred and returned, as true, 
by the Grand Jury, further proceedings under that indict¬ 
ment has to be controlled by the court in accordance with 
the custom and prescribed rules regulating the administra¬ 
tion of justice. The court as a part of the judicial depart¬ 
ment of the Government is in absolute control of the case. 
Whether the case shall be pressed to trial, whether it shall 
be settled, or whether a nolle prosequi shall be entered upon 
the indictment is a matter to be determined by the court in 
each instance, according to the circumstances of the case. 
If due obedience and respect to the laws of the land require 
that the offender shall be brought to punishment under the 
processes of the court, the fact that the settlement of the 


2G6 


revenue feature of the case has been effected through an¬ 
other department of the Government, is a matter to be con¬ 
sidered by the court, but views of that department are not 
absolutely controlling upon the court in the discharge of the 
duties which it owes to the public and to the law. The 
court, in its discretion, after an examination into the facts 
of the case, has had from time immemorial the authority to 
direct a nolle prosequi to be entered upon an indictment, 
but this is according to established law and act of the court 
and to become effective the court itself must enter a judg¬ 
ment to this effect. The court will not be unmindful of the 
recommendation of the District Attorney, but it is the court 
that is to deermine whether the nolle prosequi shall be en¬ 
tered and not the District Attorney, and no order, no matter 
how formally drawn and deliberately signed by the District 
Attorney and lodged in the office of the Clerk of the Court, 
can have the legal effect of stopping the prosecution unless 
such order has received the sanction of the Judge of the 
Court in which the indictment is pending. In the cases 
where Judge Speer has been criticised for refusing to sign 
the orders of nolle prosequi entered on the indictments by 
the District Attorney, he was of the opinion, as the presid¬ 
ing Judge of the court, and the officer upon whom respon¬ 
sibility for the administration of the law rested, that the 
due administration of the law of the land did not justify 
such a course in the cases out of which the criticism arose, 
and for this reason withheld his consent from this disposi¬ 
tion of the indictments. 

There was a difference of opinion which existed between 
Mr. Akerman, the District Attorney, and Judge Speer, as 
to the respective powers of each over these indictments. 
The District Attorney contending that as the settlement of 
the cases was satisfactory to the Treasury Department that 
this was all that was to be considered and that the Judge 
was not to be consulted in regard to the disposition of these 
cases which were pending in his court,—that is that an 
order of the court as such was not indispensable to the ter¬ 
mination of the prosecution. Judge Speer contended, how¬ 
ever, in furtherance of his views, that the cases should not 


267 


be disposed of in this way, that he had the power to hold 
the cases open on the docket of the court until an appro¬ 
priate order was passed by him as Judge of the court dis¬ 
posing of the same. It would certainly be a withdrawal of 
power from the court and a diminution of the dignity and 
the prestige of the court if the District Attorney, a mere 
subordinate officer of the court, would have the right, by 
lodging in the Clerk’s office, a paper to dispose of a pending 
prosecution in a manner inconsistent with the views of the 
presiding Judge of the court which the law had given juris¬ 
diction of the case. It is not deemed inappropriate at this 
point to call attention to a matter of public notoriety which 
has transpired in the last few days in regard to these cases 
over which the difference between the Judge and the Dis¬ 
trict Attorney arose: 

On Wednesday, the 11th day of the present month (Feb¬ 
ruary), while the District Court of the Southern District 
of Georgia was in session at Valdosta, Judge Sheppard 
presiding, Mr. Akerman, the District Attorney, presented 
to Judge Sheppard orders of nolle prosequi in all of the 
cases referred to, and asked that such orders be signed by 
the presiding Judge, which was done. This action on the 
part of the District Attorney was a complete surrender by 
him of the views which he has heretofore entertained. It 
is an admission that the action of the court is indispensable 
to the termination of the prosecution, and Judge Sheppard 
in signing the orders of nolle prosequi demonstrated his 
concurrence in the views which Judge Speer had entertained 
as to the power and authority of the court, although in the 
act of entering and authorizing the orders of nolle prosequi, 
he may have entertained different views from Judge Speer 
as to the propriety of a further prosecution in the cases. 


THE BEACH, CARTER AND GRAY CASES. 

The action of Judge Speer in these bankruptcy cases was 
criticised by W. W. Lambdin, John W. Bennett, V. E. Pad¬ 
gett and Ju^cob Gazan, attorneys for the alleged bankrupts. 



268 


The firm of Isaac & Heyward was associated with other 
attorneys for the petitioning creditors in each of these 
cases. The petition against the Beach Manufacturing Com¬ 
pany was filed on March 13, 1913, the one against the Gray 
Lumber Co. was filed April 22, 1913, and the one against 
the L. Carter Company on May 2, 1913. 

Mr. Lambdin testifies (Stenographic Record, pp. 2254-5) : 
“The filing of these three cases, which involved large prop¬ 
erty interests, rather sent a shock into the entire com¬ 
mercial world of South Georgia * * hc impression 

went abroad that this particular firm had the ear of Judge 
Speer * * * there was a general feeling of uneasiness 

and unrest. Nobody felt safe. 

It is evident that the commercial world did not know of 
the admitted financial condition of these corporations at 
the time the bankruptcy petitions were filed, otherwise 
there might have been no “shock.’" 

The Gray Lumber Company had made a deed of assign¬ 
ment to seven trustees for the benefit of creditors, and the 
trustees had taken possession of all its assets. This was a 
public and notorious act and was certainly known to that 
considerable part of the commercial world having dealings 
with that company. 

The L. Carter Company, of Odum, Ga., a corporation with 
a capital stock of $100,000, doing a mercantile business and 
conducting farming operations, had by a number of deeds, 
executed about the same time, conveyed to L. Carter, its 
president and chief owner, all the real estate it possessed, 
including the lot upon which its storehouse was situated, to 
secure an alleged indebtedness of L. Carter of more than 
$50,000, the value of the real estate conveyed to him being 
over $50,000. The public was constructively put on notice 
of this transfer because the deeds had been on record nearly 
four months when the bankruptcy petition was filed. 

The Beach Banufacturing Company had been threatened 
with bankruptcy a year before, but the petition had been 
dismissed. At the time the second petition was filed in 
March, 1913, its chief asset a large body of timiber lands 
in Florida had been sold for taxes and the three-year period 


269 


during which it could be redeemed had almost elapsed, it 
nad delaulted on its mortgage indebtedness, $40,000 of 
judgments had been obtained against it and appeared on 
the judgment dockets of Appling County, and its laborers 
had declined to work unless paid each night for the day’s 
work. 

Mr. Bolling Whitfield, during his testimony before the 
Committee, was asked as to the solvency of the above cor¬ 
porations at time of bankruptcy petitions were filed, and 
replied (p. 2031) : ‘‘My own opinion is that with the pos¬ 
sible exception o fthe Carter Company, none of them were 
solvent.” 


BEACH CASE. 


On March 31, 1913, an involuntary petition in bank¬ 
ruptcy against the Beach Manufacturing Company was 
filed by certain creditors represented by John S. Walker, an 
attorney of Waycross, Ga., who, Mr. Lambdin testifies, “Is 
a man of good character and high standing in the Bar” 
(page 2279), and the firm of Isaac & Heyward having an 
office at Brunswick, where a short time prior thereto Isaac 
had been referee in bankruptcy for a number of years, and 
having an office at Macon, where Mr. Heyward resided. 

An application was made at the same time by petitioning 
creditors for the appointment of a temporary receiver. The 
bankruptcy application set forth that one of the acts of bank¬ 
ruptcy alleged, was the payment of the Beach Manufactur¬ 
ing Company, while insolvent, of the sum of $350 to Messrs. 
Wilson, Bennett & Lambdin, as a partial payment of a fee 
claimed by them for representing the Beach Company in a 
bankruptcy proceeding brought against it about a year be¬ 
fore, but which was subsequently dismissed. 

The Beach Company owned a large body of land in Flor¬ 
ida which, however, had been sold for taxes and the time 
within which it might be redeemed was to expire within a 
few mlonths. It owned a plantation and some timber lands 
in Camden County, Ga., and a large saw-mill at New 



270. 


Lacey in Appling County, Ga. At the time of the filing of 
the petition it had ceased regular operation of its saw-mill, 
had failed to supply its commissary, and its laborers had 
refused to work unless paid each night for the day’s work. 
The company was indebted to them several thousand dol¬ 
lars for wages. Fifty mules were without food, although 
feedstuff was in the depot, on which the company was not 
able to pay freight and take out. Mr. Lambdin testifies 
(Rec., p. 2298), that there were forty or fifty judgments 
outstanding against the Beach Company, a large number of 
suits pending against it in the state court, that it had de¬ 
faulted on the issue of one hundred and seventy thousand 
dollars of bonds, but that the thirty days’ grace allowed by 
the mortgage had not expired. Its indebtedness, outside of 
its mortgage nidebtedness, was in the neighborhood of one 
hundred thousand dollars. An application had previously 
been made about a year before for the application of a re¬ 
ceiver and for adjudication in bankruptcy, but the proceed¬ 
ings were dismissed largely because one of the three peti¬ 
tioning creditors had withdrawn from the proceeding, and 
a large percentage of the creditors had intervened asking 
that a receiver be not appointed. 

Judge Speer, on the application for the appointment of 
a temporary receiver, granted an order ex parte, appoint¬ 
ing R. L. Moss, who operated a saw-mill in Clinch County, 
as receiver. This was done under the provision of the bank¬ 
ruptcy law, authorizing such appointments, “upon the appli¬ 
cation of parties in interest, in case the courts shall find it 
absolutely necessary for the preservation of the estates.” 
(Sec. 2 (3) Bankruptcy Act, 1898.) 

The application for receiver containing the necessary al¬ 
legations was properly verified. The receiver was ap¬ 
pointed for the purpose of preserving the assets of the Beach 
Company. It is difficult to imagine how the appointment 
could have injured the defendant in any way. It apparently 
had no commercial credit, as even the laborers would not 
extend it credit except for a day at a time. 

Shortly after the appointment of a receiver, a motion was 
made to dissolve the receivership, and a hearing was had on 


271 


that motion on April 3rd. Before the hearing was had, Mr. 
Leon A. Wilson, one of the attorneys for the company, 
called on Julge Speer in his office, stating that he had come 
at the instance of all of the counsel for the defendant, to 
ask a delay of the hearing for thirty minutes in order that 
a conference might be had with the attorneys for the peti¬ 
tioning creditors, with a view of an amjicable settlement of 
the litigation, which might prevent the necessity of a hear¬ 
ing on the motion to discharge the receiver. Mr. L. A. Wil¬ 
son was present in Savannah when his law partners, Messrs. 
Bennett and Lambdin, testified, but Mr. Wilson was not 
called as a witness before the Committee. The request of 
Mr. Wilson was granted, but no adjustment being made the 
case proceeded. Mr. Beach, and perhaps several others, 
were sworn. After the taking of testimony had continued 
for about a day and a half, again at the request of Mr. Wil¬ 
son, an opportunity was given for the attorneys of the de¬ 
fendant to have a conference. Soon thereafter, Mr. Wil¬ 
son came into the court-room and made the following state¬ 
ment to Judge Speer (Stenographic Record, page 2303) : 

Mr. Wilson: “I asked your Honor a few minutes ago to 
suspend and give us an opportunity to confer with our client 
with reference to giving a certain direction to this case, 
which I now want to be given. We have decided, your 
Honor, to withdraw the application for the discharge of 
the receiver, and feel satisfied that with your Honor’s su¬ 
pervision over the receiver, that the rights of the parties in 
this matter will be protected. Now, if it is necessary for us 
to consent more fully to the granting of the Receiver’s cer¬ 
tificates to obtain means with which to pay the insurance 
and take care of the mules that are absolutely necessary at 
this time, it is our purpose now to tender your Honor an 
order withdrawing the application. In doing this we would 
like to ask if your Honor would be willing to hear testi¬ 
mony as to the condition of the Florida property in order 
that your Honor may be able to give directions to that 
matter.” 

The Court: ‘T will be glad to hear that. Prepare the 
order, gentlemen, and incorporate in the order a provision 


272 


about the consent of the bankrupt to the issuance of the 
receiver’s certificates.” 

An order was prepared and presented to the Judge, and 
appears in full on page 2267 of the stenographis record. 
The words “by consent” appear at the foot of the order. 

This was understood to be a consent order, that is to say, 
that by withdrawing the motion to discharge the receiver, 
the Beach Company thereby consented to the continuance of 
the receivership. The order was not prepared by Judge 
Speer, but was presented to him by some of the counsel. He 
does not now remember what counsel of the Beach Com¬ 
pany were actually present at the time the order was signed, 
but Messrs. C. G. Edwards, V. E. Badgett, L. A. Wilson, 
W. W. Lambdin and J. N. Talley were present at the hear¬ 
ing and in view of the diligence and activity of those gentle¬ 
men, it would be a little surprising if one or more of them 
were not present when the order was presented to the Judge, 
this being done immediately after the hearing was con¬ 
cluded. The order in question was immediately put with the 
record in the case where it had remained since that time, 
and was at once entered on the minutes of the court in Sa¬ 
vannah. No question seems to have been made about the 
order until after the Beach Company had been adjudged not 
bankrupt by a jury in September, 1913, when on the ques¬ 
tion of taxing costs it was deemed important by the attor¬ 
neys for the company to resist the taxing of any of the 
costs and expenses of the receivership against the Beach 
Company, on the ground that it had not by consent or acqui¬ 
escence, permitted its property to be taken charge of by 
a receiver. The point was then raised that the words “by 
consent” were not in the order at the time it was signed by 
Judge Speer. Mr. Badgett is the only one of the numerous 
counsel in the case who makes this assertion. Mr. Lambdin, 
it seems, had not examined the order until September. Mr. 
Wilson, as heretofore stated, was not examined before the 
Committee. 

Judge Speer respectfully submits that the action of the 
Beach Company in withdrawing its motion to vacate the 
receivership, in effect consented to the continuance of the re- 


273 


ceiver and that the words ^‘by consent’^ in the order are 
really irrelevant. He further submits that it must have 
been stated to him at the time the order was presented that 
it met the approval of the attorneys for the defendant. 
Judge Speer submits that the words “by consent” were 
placed in the order at the time it was signed, and that it 
was in effect a consent order. It will be observed that the 
consent order complained of first recites that the motion 
to dismiss the receivership had been filed, and had come 
on to be heard, and that evidence had been partially taken, 
and that the alleged bankrupt had voluntarily dismissed the 
motion to discharge the receiver, it was thereupon ordered 
that the order appointing R. L. Moss be confirmed and 
that he be appointed permanent receiver to hold and retain 
the assets until the further order of the court, that the 
receiver be authorized to conduct the business of the bank¬ 
rupt as a going concern, and by consent of all parties, to 
issue receiver’s certificates in the sum of one thousand dol¬ 
lars, and to make semi-monthly reports. This was the 
order which naturally followed the direction given by the 
attorneys for the Beach Company to the motion to dis¬ 
charge the receiver. 

On April 4, 1912, the attorneys for the Beach Company 
called attention to the fact that it had a few days before the 
filing of the petition in bankruptcy made a contract for the 
sale of its Florida timber land for one hundred and sixty- 
five thousand dollars, payable in installments extending 
over five years, and the court was asked to authorize tne 
receiver to confirm and carry out the sale. This contract 
had not been turned over to the receiver by the Beach Com¬ 
pany and the attorneys for the creditors desired to investi¬ 
gate the sale and time was given for that purpose. Later, 
the matter was brought up before Judge Speer two or three 
times, but the attorney for the receiver objected to the con¬ 
firmation of the sale because the receiver was only author¬ 
ized to preserve the assets, and in case of adjudication, tne 
title would vest in the trustee and a serious complication 
might arise from that fact, also because the sale having been 
made a few days before bankruptcy, the elem^ent of pref- 


274 


erence might enter into it, and further because the time of 
payment extended over five years and might not be deemed 
by the trustee advantageous to the estate, particularly if it 
should be discovered that the Florida Timber Products Com¬ 
pany was not entirely solvent. As a matter of fact, since 
that time the purchaser has been adjudged bankrupt in 
Florida, as will appear from the evidence before this Com¬ 
mittee. 

Judge Speer, in June or July, passed an order stating that 
the confirmation of this sale would be postponed until the 
trial of the main case could be had at Savannah. 

The Beach Company filed an answer denying insolvency 
and demanding a trial by jury. This case was pending in 
the Savannah Division of the District and could not be 
tried at Macon before a jury except by consent of both 
parties. In July, Judge Speer wrote to Judge Pardee, the 
senior Circuit Judge, asking that another Judge be desig¬ 
nated to try this case on the question of bankruptcy or no 
bankruptcy, and Judge Newman, of the Northern District 
of Georgia, was so designated, and on the trial of the case 
in Savannah, in September, a verdict was returned in 
favor of the Beach Company. 

In the meantime, after Judge Speer had gone to his sum¬ 
mer home at Mt. Airy, in August, 1913, Mr. V. E. Padgett 
and Mr. J. N. Talley presented to him a petition in behalf 
of the Beach Manufacturing Company, asking that the re¬ 
ceiver be directed not to cut the timber in Camden County. 
The Beach Company having invoked the jurisdiction of 
Judge Speer, he felt at liberty to grant a imle nisi, return¬ 
able two days thereafter. At the time of presenting this 
petition to Judge Speer, said attorneys knew that Judge 
Newman had been designated to try said case, for on the aft¬ 
ernoon of the same day they left for Asheville, N. C., where 
they, with Mr. John W. Bennett, another attorney for the 
Beach Company, and Mr. George S. Jones, an attorney for 
the trustee of the bond holders of the Beach Company, had a 
conference on the following day for the purpose of having 
the case assigned for trial at Savannah. While there, it 
appears some discussion was had as to how far Judge New- 


275 


man s designation extended, and Judge Newman wrote a 
letter addressed to Judge Speer, which is in the record. On 
the day following this conference, the above named attor¬ 
neys returned to Mount Airy, and Mr. Jones presented this 
letter to Judge Speer, and it was suggested that Judge 
Speer was perhaps disqualified to pass on the petition which 
had been presented to hirr^ by Mr. Padgett and Mr. Talley. 
Judge Speer then replied that he would wash his hands of 
the entire matter, his remarks being filed with the record 
as an opinion, and read into the record before the Com¬ 
mittee by Mr. Bennett. 

Mr. Bennett, at some length, described the conduct of 
Judge Speer in making these remarks, and perhaps created 
the impression that he thought Judge Speer was mad be¬ 
cause this course had been taken by counsel after they had 
invoked an order from him. After Judge Speer declined 
to pass on th epetition it became necessary to go back to 
see Judge Newman and ask him to pass on it, and Mr. Ben¬ 
nett was chosen for that purpose. Mr. Bennett then wished 
to obtain an order or letter from Judge Speer indicating to 
Judge Newman that he did not care to pass on the petition. 

Mr. Bennett in his testimony on page 2433, describes this 
effort as follows: 

'T said: ‘Gentlemen, I will go to Judge Speer,’ and one 
of the gentlemen says, ‘he is mad as—and will put you in 
hell—I mean put you in jail, if you go to him,’ he said he 
was as mad as—and will put you .in jail if you go there.’ 
I says, ‘I will have to see the Judge before I go back to see 
Judge Newman.’ ” 

It seems, however, that Mr. Beach’s fears were ground¬ 
less, for that gentleman continues: 

“I started to Judge Speer’s home at Mount Airy, but I met 
him near the depot. He received me cordially, and asked 
me about some of my Waycross friends and his friends. 
And after talking a few minutes, the Judge said, ‘I will 
direct my stenographer to give you a copy of the official 
opinion I have rendered and the original bill will be filed in 
Savannah.’ I thanked the Judge and left him.” 

In conclusion, it may be remarked that immediately after 


276 


the jury in Savannah returned a verdict finding the Beach 
Company solvent, a receiver was appointed at once by 
Judge Newman at the instance of the Union Trust Com¬ 
pany, trustee for bond holders, for the purpose of preserving 
the assets of that company for the protection of the bonds 
of the company. In other words, after hearing all the evi¬ 
dence in the case. Judge Newman deemed it necessary to ap¬ 
point a receiver to prevent loss to the bond holders, al¬ 
though the jury had returned a verdict that the company 
was solvent, and although the evidence was practically undis¬ 
puted that it owed practically one hundred thousand dollars 
in addition to its bonded indebtedness. 

This receiver is still in charge of the property and has 
been since September, 1913. 


THE L. CARTER COMPANY CASE. 

W. J. Broadhurst and other creditors, on May 9, 1913, 
filed a petition in bankruptcy against the L. Carter Com¬ 
pany, the act of bankruptcy being the transfer made by that 
company to L. Carter of all its real estate holdings of the 
value of $51,000, this it was alleged, was done to prefer L. 
Carter over other creditors, and to hinder, delay and de¬ 
fraud creditors. These conveyances had bee recorded in the 
Clerk’s office of the County, and lacked two or three days 
of being four months old at the time the bankruptcy peti¬ 
tion was filed. After four months such conveyances could 
not be attacked. 

On the filing of this petition, on the application of the 
creditors. Judge Speer granted an order requiring the com¬ 
pany to show cause on the 23rd why a receiver should not 
be appointed, and restrained the company from changing 
the status of its property and from putting any liens or in¬ 
cumbrances on the real estate conveyed to Carter, its presi¬ 
dent. On the same day, however, Judge Speer appointed 
Henry G. Tucker custodian, and directed him to take pos¬ 
session of the books and records of the company. 

On the following day. May 10, 1913, Mr. Lambdin, at- 



277 


torney for Carter Company, called on Judge Speer and 
stated as follows (Stenographic Record, p. 23183: made 

formal application to Judge Speer setting up that this was 
not a bona fide petition, that they did not owe the debts, 
and asked the privilege of giving bond, I urged that the 
attorneys for the petitioning creditors should not be per¬ 
mitted to take our books and find out the names of others 
to bolster up their petition with, and I asked Judge Speer to 
modify his order and have the receiver take charge of the 
books and accounts and seal them up and not let anybody 
see them, and Judge Speer granted the order.'' 

It will be thus seen that Judge Speer granted fully the 
request of Mr. Lambdin, and if there had been any disposi¬ 
tion on the part of the attorneys for the petitioning cred¬ 
itors, Messrs. J. R. Thomas, J. A. Morris and Isaac & Hey¬ 
ward, to examine the boows of Carter for the purpose of 
“bolstering up their petition," Judge Speer's direction to 
seal up the books successfully prevented them from doing so. 

The case came on for hearing before Judge Speer on 
June 12, on the question of the appointment of a receiver. 

Mr. W. J. Broadhurst, one of the petitioning creditors, 
was present, as was J. R. Thomas and Max Isaac, attorneys 
for petitioning creditors. Mr. Lambdin had some paper in 
his hand when the case was called, and a short conversation 
was had by him with Mr. Thomas. Mr. Lambdin then 
stated to the Judge that he had an application from Mr. 
Broadhurst stating in effect that his name as a petitioning 
creditors had been used by Mr. Thomas without authority. 
Judge Speer stated that such a motion would naturally come 
from Mr. Broadhurst or his attorney, Mr. Thomas, both of 
whom were in court, and not from the attorneys for the 
opposite party. 

The answer of the Carter Company was then read, and 
on motion of petitioning creditors, represented on the rec¬ 
ord by J. R. Thomas and Max Isaac, Judge Speer struck a 
portion of the answer alleging on information and belief 
that the names of Broadhurst as a petitioning creditors had 
been used without his authority, on the ground that the peti¬ 
tion. was signed by J. R» Thomas and Max Isaac, who pur- 


278 


ported to represent Broadhurst, and that he was bound to 
presume that they were so authorized, that the indirect attack 
on counsel for plaintiff by the answer of the defendant was 
improper. Evidence was submitted, and Broadhurst, one 
of the petitioning creditors, was sworn as a witness and 
testified as to the indebtedness due him by the L. Carter Co. 

On the following morning, at the motion hour, Mr. R. L. 
Bennett arose and stated he had a motion to strike the name 
of Broadhurst as a petitioning creditor. As the hearing in 
the Carter case was to be continued, as soon as counsel pres¬ 
ent had submitted their motions, in other cases. Judge 
Speer told him to file his motion with the Clerk, and it would 
be taken up later, meaning when the hearing on the Carter 
case was resumed. The hearing was resumed, and in a short 
while Judge Speer stated that he would decline to appoint 
a receiver, saying: 

‘‘The proceeding here is based, it is true, upon a very 
small margin of the claims of creditors to support the pro¬ 
ceedings in bankruptcy, but if that margin is sufficient, not¬ 
withstanding the poverty of the claims the court has no right 
to exclude these small creditors from the privileges and the 
benefits of the act, but here the demand is more,—it is, that 
the court will take all of this property away from the hands 
of the debtor, the alleged bankrupt, and put it in the hands 
of a receiver. To justify that the equity of the plaintiff 
must be complete. It not only must be complete, but it 
must be very strong. The court does not think that it is 
sufficiently strong in this case to justify the appointment of 
a receiver, but what may develop further in the case I can 
not anticipate, further creditors may come in to give it jur¬ 
isdiction, there may be enough to give jurisdiction now, 
that, as I said, is not up at this time, that is not the question 
to be decided. I am informed that the bankrupt has de¬ 
manded a jury trial, if so, the jury must pass upon it,— 
that being true, the case not being sufficiently strong in my 
opinion to justify the appointment of a receiver, it is de¬ 
clined, the application is declned.’’ 

At the conclusion of the hearing, Mr. Isaac stated that he 
desired to present a petition to the court asking for an in- 


279 


junction restraining L. Carter from disposing of or trans¬ 
ferring the real estate conveyed to him pending the final 
hearing before a jury on the bankruptcy petition. This 
was denied, Judge Speer stating that the pendency of the 
bankruptcy case would probably be effective as a Us pendens 
to prevent such transfers if they were contemplated by Mr. 
Carter. Mr. Isaac then moved that the books and records 
of the L. Carter Company be impounded until the final 
hearing. The fifteen deeds made by L. Carter Company to 
L. Carter had been tendered in evidence and filed with the 
Clerk during the progress of the hearing on the day before. 
Judge Speer then remarked, 'T will direct that all this evi¬ 
dence be impounded and remain so until this case is finally 
disposed of.” This remark of the Judge evidently referred 
to the deeds in evidence. Mr. Lambdin, probably misunder¬ 
standing the ruling of the Judge, said, ‘'We think this is 
not a case where the books of the company would be im¬ 
pounded,” giving his reasons therefor. Mr. Wilson followed 
on the same line. 

Judge Speer adhered to his ruling that the deeds already 
in evidence should remain with the Clerk until the final 
hearing of the case. This is the usual practice in such 
cases, unless copies are substituted for originals by consent, 
indeed there is a rule of court requiring title deeds to be 
used in evidence to be deposited with the Clerk. 

Judge Speer did not preside on the trial of the case on 
its merits. On miotion of the attorneys por petitioning cred¬ 
itors the case was dismissed in September by Judge New¬ 
man. 


THE GRAY LUMBER CASE. 

In this case, the attorneys for the petitioning creditors 
were McDonald & Willingham, Osteen & Wallace, of Doug¬ 
las, and Isaac & Heyward. An involuntary petition was 
filed April 22, 1913. The business of this company was lo¬ 
cated in Coffee County. Mr. Lambdin, who criticised this 
case, testified (Record, p. 2273): “They owed debts to the 



280 


amount of about $150,000. Mr. Gray became financially 
embarrassed, could not pay his debts when due and he 
called a meeting of his creditors. They finally came to an 
agreement which was printed and the substance of the 
agreement was that the creditors agreed to give an exten¬ 
sion of four years to the Gray Lumber Company, 25 per cent, 
to be paid on the first of January of each year, and a com¬ 
mittee composed of B. B. Gray and six others (naming 
them), were constituted a committee of creditors to take 
charge of the business, and they did take charge of the 
business, and several of the non-consenting creditors filed a 
petition in bankruptcy.’’ This transfer was attacked by the 
bankruptcy petition as an assignment for the benefit of cred¬ 
itors, and constituted an act of bankruptcy. 

An application was made for the appointment of a re¬ 
ceiver, and Judge Speer issued a rule requiring the defend¬ 
ant to show cause why one should not be appointed. A few 
days before the hearing a petition was filed setting up that 
days before the hearing a petition was filed setting up 
that the valuable saw-mill property was not protected 
by insurance, and the bankrupt, through his attorney, 
Mr. Lankford, consented to the appointment of a receiver 
for the purpose of effecting insurance. Mr. Gray, the 
president of the company, and a trustee under the alleged 
assignment, was appointed receiver for that purpose. Mr. 
Lambdin’s complaint here is (p. 2278) that Mr. Gray and 
his counsel went to Macon “and a trade was made with the 
attorneys for the petitioning creditors whereby Mr. Gray 
consented for the appointment of a receiver and he (Judge 
Speer) thereupon appointed a receiver in advance of the 
hearing.” 

It does not appear, however, that Judge Speer was a party 
to any such “trade,” but on the contrary, it must be pre¬ 
sumed that he acted on the petition presented to him which 
justified and demanded this action on his part. 

The hearing was had on the application for receiver, on 
the day set for the hearing, and Judge Speer appointed B. 
B. Gray and Y{. T. Anderson, receivers. This was done after 
counsel were asked if they could not “agree on the personnel 


281 


of the receivers, and being informed that they could not 
agree.’^ (Rec., p. 285.) 

adjudication was returnable to the Val¬ 
dosta Division, and is being resisted by some of the trus¬ 
tees under the alleged assignment. It was assigned before 
Judge Newman at Savannah, but was postponed and was 
referred to the Referee as Special Master by Judge Shep¬ 
pard at the present session of the court at Valdosta. 


THE YARYAN CASE. 


This case has been referred to incidentally by several of 
the witnesses before the Committee. It was an equity case, 
the bill being filed by a creditor, and receivers appointed 
by Judge Speer by consent of the defendant, the latter filing 
an answer admitting the allegations of the bill. The final 
hearing on this case was had before Judge Sheppard of the 
Northern District of Florida. 


CONDUCT OF JUDGE SPEER IN CASES IN WHICH 
HIS SON-IN-LAW HAD A CONTINGENT FEE. 

Judge Speer has not presided in any cases in which he 
knew Mr. Heyward had a contingent fee. 

A list of the ciivl and bankrupcy cases in the United States 
Court, in which Talley & Heyward appeared of counsel 
has been furnished by Mr. Talley to the Committee. A 
reference to that list will show that they were not of counsel 
for petitioning creditors in any contested bankruptcy case, 
even if such cases may be regarded as contingent fee cases, 
as contended by Mr. Alexander Akerman. It will also 
appear that Judge Speer did not fix the fees of Talley & 
Heyward, where such fees were required to be fixed by the 
court, but that uniformly their applications for fees were 
referred to a special master, and fees fixed by special mas¬ 
ter, and no exceptions filed by any party at interest, and that 




282 


in case of exceptions as in the bankruptcy case of the Dublin 
Cooperage Company, Judge Speer disqualified. In the lat¬ 
ter case, there appears in the record a waiver of such dis¬ 
qualification signed by all parties interested. 

It appears from the testimony of Mr. Meldrim! (p. 1680), 
that he understood Talley & Heyward had a contingent fee 
in the case of Watson vs. Hester, damage suit for false im¬ 
prisonment. 

Mr. Meldrim was asked, “You knew before the case was 
tried that they had a contingent fee?’' He replied, “Only 
from Talley, sir.” Mr. Callaway: “And you did not call 
that to the attention of the court?” Mr. Meldrim: “No, 
sir, but I make no complaint about that at all.” Mr. Cal¬ 
laway : “If you did complain of it, it would have been your 
duty to call it to the attention of the court.” Mr. Meldrim: 
“Yes, sir.” 

A reference to the list of cases in which Talley & Hey¬ 
ward were interested will disclose the fact that they rarely 
appeared in damage suits or other cases of like character 
where attorneys often receive fees based on the amount 
of the recovery, and from the list it will be seen that ac-^ 
cording to the statement furnished the Committee, they 
had a fixed or agreed upon fee, in every such case, except 
possibly the case of Memminger vs. Postal Telegraph Co., 
where it does not appear what their contract was. In this 
case Talley & Heyward and John R. L. Smith represented 
the plaintiff, obtained a judgment of $1,500 which was sus¬ 
tained by the Circuit Court of Appeals. The case of Wat¬ 
son vs. Hester has been referred to by Mr. Meldrim as 
above. From the list furnished the Committee it does not 
appear what fee these attorneys had in the cases of North¬ 
rop vs. Clements, and Northrop vs. Troup, ejectment, where 
they represented the plaintiff. As Judge Speer directed 
verdicts for the defendants in these cases, it can hardly be 
said that he showed favoritism to Talley & Heyward, partic¬ 
ularly as both decisions have been reversed by the Circuit 
Court of Appeals. It is, however, true as stated in the out¬ 
set, Judge Speer has never knowingly presided in any case 


283 


where it was brought to his attention that his son-in-law, 
Mr. Heyward, had a contingent fee. 

But it is said by Mr. Lambdin and Mr. Alexander Aker- 
man, in their testimony before the Committee, that Messrs. 
Isaac & Heyward, who were associated with other counsel 
in the three bankruptcy cases of the Beach Manufacturing 
Company, The L. Carter Company and the Gray Lumber 
Company, might have had a contingent fee in those cases, 
if they were successful in having those companies, or any 
one of them;, adjudged bankrupt; that under the Bankruptcy 
Act (Sec. 64-b-3), which provides for the payment of debts 
having priority, including cost of administration “and one 
reasonable attorney’s fee, for the professional services act¬ 
ually rendered to the petitioning creditors in involuntary 
bankruptcy cases.” The theory on which this compensation 
is provided for by the statute is that the attorneys for the 
moving creditors may incidentally render services beneficial 
to the other creditors in the case. The statute does not 
provide that such attorneys have any specified interest in 
the result of the litigation, their fees are to be fixed by the 
court after their services are rendered, and must be based on 
the actual services rendered by such attorneys. The only 
theory upon which this class of cases can be in any way 
classed as contingent fee cases, is that the greater the suc¬ 
cess achieved for all creditors, the greater the compensation 
to which they may be entitled. 

It is true, however, that Judge Speer passed on none of 
the controlling issues in those cases. The defendant, in 
each case, filed a denial of bankruptcy and Judge Speer 
passed on that issue in none of the cases referred to. 

The only orders made by him were in the nature of pro¬ 
tective orders preserving the status until the hearing on 
the merits of the petition could be had. 

In the Beach case he appointed a temporary receiver, 
who under the bankruptcy law is a mere custodian for the 
preservation of the assets. A motion was made to dissolve 
this receivership, but was subsequently withdrawn and the 
defendant thereby consented to the propriety of the order. 
An application having been made to Judge Speer by the 


284 


Beach Manufacturing Co. to approve the sale made by it of 
certain timber land, Judge Speer passed an order post¬ 
poning action on that petition until the bankruptcy petition 
on its merits could be heard. The Beach Manufacturing 
Company, through its attorneys, also presented to Judge 
Speer a petition to restrain the receiver from cutting cer¬ 
tain timber. Judge Speer issued a inde nisi, but the hear¬ 
ing thereon was had before Judge Newman. If Judge Speer 
was disqualified, as contended by Mr. Lambdin, for the 
Beach Company, and if Julge Speer should have known 
from the character of the case that his son-in-law, Mr. Hey¬ 
ward, Jr., might have a fee dependent on the result, such 
knowledge must have been possessed by Mr. Lambdin, and 
the other attorneys for the Beach Company, and it was as 
much incumbent on them to make the suggestion to Judge 
Speer as it was for the Judge to discover such fact and vol¬ 
untarily disqualify. Judge Speer had the right to assume if 
any disqualification existed, that the point was waived by 
said attorneys. Particularly would this seem to be true when 
Padgett and Talley, attorneys for Beach, presented the peti¬ 
tion to Judge Speer after he had disqualified in the main 
case and after they knew that Judge Newman had been des¬ 
ignated in his stead. 

The order passed by Judge Speer in the Carter case was 
also merely preliminary. There the Judge appointed a cus¬ 
todian to take charge of the books and accounts of the L. 
Carter Company and on the following day, at the instance 
of the Company, modified the order by directing that the 
books be sealed up so that no one could examine their con¬ 
tents, and on the hearing the Judge dismissed this custo¬ 
dian. The bankruptcy case was afterwards dismissed by 
Judge Newman. 

In the case of the Gray Lumber Company, Judge Speer 
issued a rule nisi, later appointing a receiver only to effect 
insurance and on the hearing on the rule nisi appointed re¬ 
ceivers to preserve the property until the trial could be had 
of the issue of bankruptcy or no bankruptcy. This last 
issue has never been tried before Judge Speer. 

Mr. Lambdin, a witness who appeared before the Com- 


285 


mittee, was counsel for the alleged bankrupts in all of these 
cases, and never at any time suggested to Judge Speer that 
in his opinion it was improper for Judge Speer to pass any 
of the orders named, or to preside in cases of this char¬ 
acter where Mr. Heyward had an interest as an attorney 
at law. 

Mr. Lambdin says (Stenographic Record, p. 2266) : 

“In the State courts ... in my practice in the State 
courts, and in other courts, you merely have to suggest that 
one of the attorneys is related to the Judge, and that he has 
a contingent fee, and if the mere suggestion is made, the 
Judge voluntarily, without any request, is too glad to dis¬ 
qualify himself.’^ 

It is true, however, that Mr. Lambdin never at any time 
made any such suggestion to Judge Speer. It is also true, 
that in the courts of the State, provision is made for one 
Judge to act for another in cases of disqualification, and 
usually very little delay will result because another judge 
can usually be found in a few hours' time. This is not true 
with the District Court Judge of the United States. Here in 
case of disqualification, application must be made to a Sen¬ 
ior Circuit Judge for the designation of another District 
Judge, which District Judge may be at a distant point in 
another state, and if the opinions of some of the lawyers 
who have testified before this Committee are correct, such 
designated judge would be compelled to visit the Southern 
District of Georgia in order to pass the order sought. Such 
delays might work irreparable injury in urgent cases, where 
immediate relief is essential. It would therefore appear to 
be the duty of the Judge who was not plainly disqualified, 
or if such disqualification was waived by acquiescence_ or 
otherwise, or in case where there would be a failure of jus¬ 
tice, to pass such preliminary and protective orders as might 
be necessary to preserve the status of the cases until the con- 
controlling issues therein could be tried before another 
■judge. 

The principle that a man may not be a judge in his own 
cause is of universal acceptance and has been established 
since the earliest periods of the common law. Lord Cokei 


286 


once said that even the transcendent power of the English 
Parliament was not sufficient to make a man a judge in his 
own case. However, at common law a judge was not dis¬ 
qualified to preside in cases where he was related to the 
parties, nor in cases where lie had been of counsel prior to 
the time of his being called to the office of judge. This rule 
was based upon the idea that prejudice will not be pre-^ 
sumed in a judge and no challenge will be allowed against 
a judge for favor. In such cases, however, it was permiss¬ 
ible for the judge to retire from the case of his own motion, 
and this action has received commendation at the hands 
of judges in different jurisdictions. While there is no ex¬ 
press disqualificaton declared by law. Congress has de¬ 
clared : 

Whenever it appears that the Judge of any dis¬ 
trict court is in any way concerned in interest in any 
suit pending therein, or has been of counsel for 
either party as to render it improper in his opinion 
for him to sit on the trial, it shall be his duty on the 
application of either party to cause the fact to be 
entered on the records of the court.’" 

and the procedure then to be followed in order to obtain the 
services of another judge are set forth in the Act. 

Revised Statutes, 601. 

The provision is applicable where the judge has a pecun¬ 
iary interest in the cause, or where he is related to a per¬ 
son who is an actual party to the record, or where he hJasJ 
been of counsel in the same cause or in the controversy out 
of which it arose. It is to be noted that even under this 
Statute, the judge presiding under circumstances referred 
to in the Statute is classed as an impropriety and not an 
absolute ground of disqualification,—that is except where he 
has himself a pecuniary interest. The matter of the pro¬ 
priety of his presiding in the cause is left to his determi¬ 
nation. There is in the Statute a remnant of the principle 
of the common law above referred to that a Judge cannot 
be challenged for favor and that there are questions of pro- 


287 


priety which one occupying the position of a judge must de- 
cide for himself. 

In some jurisdictions statutes have been passed abso¬ 
lutely disqualifying a judge from presiding in a given char¬ 
acter of cases. There is a statute of the State of Georgia 
which declares# 

'‘No judge or justice of any court * * * can 

sit in any cause or proceeding in which he is pecun¬ 
iarily interested or related to either party within 
the fourth degree of consanguinity or affinity, nor 
of which he has been of counsel, nor in which he 
has presided in any inferior judicature when his rul¬ 
ing or decision is the subject of review, without the 
consent of all parties at interest; provided, that in 
all cases in which the presiding judge of the Super 
ior Court may have been of counsel before his ap¬ 
pointment as judge, he shall preside in such cases if 
the opposite party or counsel agree in writing that 
he may preside, unless the judge declines so to do.” 

Civil Code of Ga. (1910), 462. 

The word “party” in this statute has been held by the 
Supreme Court of Georgia to be sufficiently broad to include 
an attorney for a party, who has by contract an interest 
in the proceeds of the judgment that might be rendered in 
the case, and that a judge who is related to such an attorney 
within the prohibited degree would be a disqualified judge 
under the Statute. 

While this Statute of the State of Georgia is of course 
not binding even upon the Judge of a Federal Court pre¬ 
siding within the territory of the State of Georgia, it is 
referred to simply as the rule of the State court prevailing 
in the territory where the Federal court is located over 
which Judge Speer presides. The criticism which has been 
made upon the Judge is one that has its origin probably in 
the existence of this State Statute relating to the matter 
which is the basis of the criticism. There is some difference 
of opinion as to whether the judgment of a disqualified judge 
is void or voidable, but the better view seems to be that 


288 


unless there, is a Statute declaring such act to be void the, 
judgment is only voidable. Even in cases where there is a 
Statute prescribing definite grounds of disqualification, a 
judge so disqualified by operation of the Statute may make 
valid orders of a certain character in a cause. If there is no 
provision made in the law for another judge to preside, 
even a disqualified judge may act in a cause in order that 
there may not be a failure of justice. Growing out of this 
well recognized principle it has been held that a disqualified 
judge can without impropriety pass formal orders in ’a 
cause in which he is actually disqualified. It has also been 
held that the fact of disqualification would not prevent the 
Judge from passing a preliminary order, more than formal 
in its nature, in order that injustice might not result from 
the delay required for presentation of the matter to a qu/ili- 
fied judge. 

American & English Encyclopedia of Law, 2 Ed. 

Vol. 17, page 744. 

Chase vs. Western, 75 Iowa, 159. 

The criticism is made that Judge Speer passed orders in 
in bankruptcy cases appointing receivers or custodians 
prior to adjudication in cases where his son-in-law was of 
counsel for moving creditors. It is said that the compensa¬ 
tion which is to be paid to counsel for the moving creditors 
in a bankruptcy case is contingent upon the fact of adjudi¬ 
cation, and therefore such counsel has a contingent fee 
within the usual meaning of that term, and a Judge who is 
nearly related to such counsel would be disqualified to act 
in any way in the cause. This construction would disqual¬ 
ify the kinsman of a judge for acting for the defendant in 
a bankruptcy case also, for the court must fix a fee for the 
defendant’s attorney. It follows then that a relative of a 
judge could not practice at all in bankruptcy cases. This 
shows the absurdity of the contention. If such compensa¬ 
tion is to be properly characterized as a contingent fee, then 
under the Statutes of Georgia a State Judge would be dis¬ 
qualified in a similar case, but there is no Federal Statute 


289 


which would disqualify a judge in a case of that character. 
The ru.ing of the Supreme Court of Georgia extending the 
meaning of the word ^‘party” in the Statute declaring in 
what cases a judge should be disqualified is based upon the 
theory that the attorney by virtue of a contractual relation 
with his client or by operation of law, growing out of his 
relationship to the case, becomes a qitasi party,— just as 
in any case where one not a party to the record is shown to 
be the person who would receive the proceeds of the recov¬ 
ery. Whether counsel for moving creditors in a bankruptcy 
proceeding whose compensation is to be determined during 
the progress of the case and dependent upon the fact of 
adjudication is a qmsi party to the cause might admit of 
serious debate, but so far as the action of Judge Speer is con¬ 
cerned it is immaterial, for it appears from the evidence 
that he has never passed upon the question of adjudication 
in any bankruptcy case where his son-in-law was of coun¬ 
sel for the moving creditors, nor has he ever fixed directly 
or indirectly any fee or compensation for his son-in-law as 
counsel for the moving creditors in a bankruptcy case. 
Wherever the record discloses that he has acted in any 'of 
such cases, the order passed has either been of a formal 
nature, or where it might be declared to be more than 
formal, it was an order passed in the preliminary stage of 
the case for the purpose of preserving the estate, in order 
that the question involved therein might be thereafter 
passed upon by a referee or a judge about whose qualifica¬ 
tion to act there could be no question. When a petition for 
adjudication in involuntary bankruptcy is filed the court 
of bankruptcy acquires jurisdiction of the estate of the al¬ 
leged bankrupt sufficient to authorize the court by appro¬ 
priate orders to preserve the estate for the benefit of cred¬ 
itors, if the person against whom the proceeding is insti¬ 
tuted is ultimately adjudged a bankrupt or for return to 
such person if the bankruptcy proceedings fail or be dis¬ 
continued. The court may appoint either a receiver or a 
custodian and where a receiver is appointed for the purpose 
only of preserving the estate, there is little practical differ¬ 
ence between a receiver and custodian. A judge who, al- 


290 


though disqualified, passes, from the necessity of the case, 
a preliminary order of the character above indicated in 
order to preserve the estate from being dissipated or spir¬ 
ited away, in the time that might elapse while a qualified 
judge is being sought is certainly guilty of no impropriety 
where the circumstances are such as to show that it is to 
the interest of all concerned, even the alleged bankrupt him¬ 
self, that there should be some person as custodian of the 
property or as a receiver in the nature of a custodian. 

It was stated by Mr. Alexander Akerman in his testimony 
that Judge Speer had threatened to put in jail any attorney 
who raised the question of his disqualification on account of 
Mr. Heyward’s relationship. Judge Speer denies this, and 
the testimony before the Committee discloses no instance 
where Judge Speer did put any attorney in jail for raising 
the question, or made any effort or suggestion to the effect 
that he might do so. 


UNITED STATES VS. ATLANTIC COAST LINE R. R. 

RENNET & BRANCH. 

Complaint is here made of the “arbitrary” conduct of 
Judge Speer in requiring Mr. J. N. Talley, one of the at¬ 
torneys for the railroad company, to summarily produce 
papers showing the interstate character of freight being 
carried in trains of the railroad company, such papers 
being in court in the possession of Mr. Talley. The wit¬ 
nesses examined before the committee were Messrs. Stanley 
S. Rennet and Mr. Lee W. Branch, of Quitman, who with 
Mr. Talley, represented the railroad company. These gen¬ 
tlemen still represent that corporation. 

This was an action brought by the United States to 
recover twenty penalties of $100 each for alleged violations 
of the safety appliance acts. The Government was repre¬ 
sented by Mr. R. E. Storrs, assistant United States Attor¬ 
ney, and Mr. R. F. Walter, Special Assistant United States 
Attorney. Mr. Akerman, the United States Attorney, who 
is also the retained counsel of the railroad company in its 



291 


cases m the United States Court, did not participate in the 
trial. 

The Committee will recall that in this case Aker- 
man testified that he was ‘^neutral.^^ A more drastic 
inquiry, it is submitted, will evoke that his neutral¬ 
ity was armed in favor of his client, the railroad company, 
against his client, the United States. 

The Government conceiving it necessary to show the in¬ 
terstate character of the freight carried on the trains which 
bore the cars with defective appliances, had some time prior 
to the trial given the attorneys written notice to produce 
this documentary evidence. A list of the documents had 
been furnished them. On May 13, 1910, when the case 
was called, and Mr. Talley asked to produce the papers 
called for, he replied, “We decline to produce the papers 
called for because no order has been issued by your Honor 
in accordance with the statute.” Judge Speer replied, “I 
will state to Mr. Talley I will give the order now.” Mr. 
Talley insisted that he had a right to be heard on the peti¬ 
tion for the production of the papers. Judge Speer in¬ 
quired of Mr. Storrs: “Are you certain they are in court?” 
Mr. Storrs replied, “No, sir, but I am certain they are in 
the possession of the defendant company, secured for the 
purpose of production if the court sees fit to require it.” 
Mr. Storrs produced the original notice which had been 
served on Mr. Talley several months before and stated, “We 
are prepared to prove those records are in the possession 
of the defendant at this time, they have been segregated for 
the purpose of production in response to that notice, that 
they were two days ago in the possession of the officers or 
agents of the company.” 

Judge Speer then requested Mr. Storrs to change his 
notice to the form of a petition to the court, and said, “You 
may take this order: Read and considered. In view of the 
recitals in the petition above set forth, and exhibit ap¬ 
pended thereto, it is by the court ordered, that the defend¬ 
ants do show cause instanter why the written and docu¬ 
mentary evidence referred to in said petition and notice to 
produce should not be forthwith produced.” 


292 


Mr. Talley then stated, ‘T think we are entitled to a rea¬ 
sonable time to answer the allegations.” Judge Speer re¬ 
plied, ‘T will give you until to-morrow morning to file your 
answer. You had best verify that petition, Mr. Storrs. 
This matter was sprung on the court a little suddenly.” 

Mr. Storrs then called attention to the fact that a sub¬ 
poena decus tecum had been served on Mr. McCranie, sup¬ 
erintendent, to produce the same papers. Mr. Talley objected 
to the witness producing them because the subpoena decus 
tecum had not been directed by the Judge to be issued. Mr. 
McCranie was, however, sworn and stated that he did not 
have the papers with him. 

Judge Speer then directed the Clerk to '‘issue a subpoena 
for this gentleman as a witness in this case immedaitely.” 

Judge Speer then postponed further proceedings in the 
case until the following morning. May 14th, 1910. 

On the next morning Mr. Talley stated, “We have the 
papers in court, and have not produced them. We desire 
to answer that rule and submit a demurrer. In the event 
your Honor directs we should produce the papers, we are 
ready to produce them.” Judge Speer replied, “I will not 
pass on the rule. You have the papers in court, just pro¬ 
duce them.” Mr. Talley insisted on presenting his de¬ 
murrer and answer to the petition for production of the 
papers. Judge. Speer stated, “You may consider the rule 
and the demurrer as pending, but I do not make any decis¬ 
ion on the rule. I just order you to produce the papers, and 
that settles it. There is no use saying any more, if you 
want to except to that direction, you can do so.” Mr. Talley 
asked that an exception be noted. Mr. Walter, Special As¬ 
sistant United States Attorney, stated he would call for 
the papers as needed. 

The case then proceeded before the jury, and at the con¬ 
clusion of the Government’s case, the defendant offering 
no evidence, a verdict was directed against the defendant 
on the twenty counts, or $2,000. 

Mr. S. S. Bennet’s version of the colloquy appears on 
page 2216 of the Committee Record, and is as follows: 


293 


“Mr. Talley then told the court that he had the 
papers there. The court then says, ‘Mr. Talley, you 
may turn those papers over to the District Attorney.^ 
Mr. Talley says, ‘Does your Honor order us to do 
that?’ He says, ‘Mr. Talley, aren’t you a practitioner 
at this bar?’ He said he was. He said, ‘When you 
became such didn’t you take a solemn oath?’ ‘Yes, 
sir.’ ‘Didn’t that make you an officer of this court?’ 
‘It did.’ He says, ‘I direct you as an officer of this 
court that you turn these papers over to the Dis¬ 
trict Attorney,’ Mr. Branch, or I one, told Mr. Tal¬ 
ley it was time to turn, so we delivered the papers to 
the District Attorney.” 

Mr. Bennet further says that Mr. Talley asked that an 
exception be noted to that ruling, that the Judge asked 
“what ruling?” that Mr. Talley replied, “Your Honor has 
directed and ordered us to turn these papers over to the 
District Attorney. He said, “I didn’t do anything of the 
kind,” and turned to the stenographer and said, “Take this 
down—I don’t pretend to quote the exact language—and 
then dictated an order in effect that the attorneys for the 
railroad company having “voluntarily produced the papers, 
the rule is dismissed, as it calls for no order on it,” or some¬ 
thing of that kind. 

A complete stenographic report of the colloquy in the 
case was produced before the Committee, and that portion 
of it relating to what occurred on the second day of the 
hearing appears on pages 2232 to 2335 of the Committee 
Record, and the official stenographer who reported it was 
in the court room ready to verify it as correct. As will be 
seen the recollection of Mr. Bennet, after a lapse of nearly 
four years, is at variance with the stenographic record, 
particularly as to the supposed colloquy as to Mr. Talley 
being asked if he was a member of the bar, an officer of 
the court, etc., and the Judge requiring him to produce 
papers on that ground. 

Mr. Branch testified very much to the same effect as his 
partner Mr. Bennet, but added that the direction of the 
verdict was doubtless proper, “we had absolutely no evi¬ 
dence.” The direction to the stenographer to take down 


294 


an order, was given on the preceding day, and these attor¬ 
neys are evidently in error as to any such thing occurring 
on the second day. 

The authority of the court to direct an attorney to pro¬ 
duce papers in his possession in court is well settled by the 
authorities. 

One such authority was called to the attention of the 
Committee, page 2239. That was the case of Carter & Co. 
vs. Southern Ry. Co., 3 Ga. App., 37, in which Mr. E. V. 
Padgett, who appeared before this Committee as a witness 
and whose complaints against Judge Speer are set out begin¬ 
ning on page 2324 of stenographic record, was the attorney 
for Carter & Co., the plaintiffs. It developed in the State 
court that Mr. Padgett had certain contracts in his posses¬ 
sion in court material to the defense, and a verbal request was 
made upon him. The court say, “Upon the admission 
of plaintiff’s attorney that he had the said contracts 
in court, and upon his refusal to produce same upon 
the verbal request of the defendant’s attorney, for the 
purpose of being used in evidence, the court required the 
attorney for the plaintiffs to produce said contracts 
instanter and they were so produced, upon the oral 
motion of defendant’s attorney, who stated in his place that 
they were material to the issue.” On an amendment being 
offered in that case, a continuance was had until the next 
term, and written notice given to Mr. Padgett to produce 
the papers at the next term. When the case was again 
called for trial, Mr. Padgett stated that before receiving 
the written notice the papers “were destroyed in my office, 
not without my consent,” and added, “When the court 
forced me to produce these papers at a former trial, I 
understood he had no power to do so if I had not had them 
in the court-room,” and made up his mind to destroy them. 
Defendant moved for a judgment by default, which was 
overruled. The Court of Appeals sustained this decision 
on the ground that it appeared that the attorney had 
destroyed the papers before the written notice had been 
served on him, but remarked, “We think that the court 


295 


might have attached plaintiff’s counsel for contempt of 
court for destroying the papers.” 

This is a singular instance of the hazard to the ascer¬ 
tainment of truth incurred when the recollection of wit¬ 
nesses, particularly disappointed attorneys, are heard to 
vary the official stenographic report of the hearing, to 
which the attention of the Committee is earnestly invited. 
Besides, Bennet says ‘T do not pretend to quote the exact 
language.” Morcock is not only a man of singular integrity, 
but a stenographer of great accuracy. He was sworn to re¬ 
port accurately and transcribe correctly. He was paid by the 
Department of Justice. In no case has the accuracy of his 
reports ever been questioned. In this case to enforce the Act 
of Congress made to protect the lives and limbs of the rail¬ 
road operatives, it is respectfully submitted that the Com¬ 
mittee should not accept the testimony of the railroad’s dis¬ 
gruntled attorneys to contradict the official report, and to 
reflect upon the righteous action of the Judge. But even if 
the recollection of Bennet and Branch be regarded as bet¬ 
ter evidence than the official report, there is nothing in it 
which is in any sense discreditable to the Judge. 


DISSIPATION OF ESTATES IN BANKRUPTCY CASES. 

While Mr. T. S. Felder was on the stand as a witness at 
Savannah, Mr. FitzHenry asked him the following question: 

''Now, General, it has been said that the handling of 
bankruptcy estates in Judge Speer’s court has been disgrace¬ 
ful, and that estates have been wasted by friends of Judge 
Speer, who were appointed receivers, custodians, attorneys, 
etc.; I wish you would kindly tell us what there is with ref¬ 
erence to that assertion.” Mr. Felder replied: ^ 

"There is no question, sir, that estates are wasted. It is 
a further fact that when it comes to selecting officers who 
are to administer these bankrupt estates, that only certain 
ones are selected, or should be selected if it is desired to 
have the views of counsel properly entertained; certain 
ones receive these benefits. If an estate is there for admin- 



296 


istering, all kinds of officers are appointed/' instancing the 
appointment of special masters to fix the compensation of 
counsel, the appointment of receivers without regard to fit¬ 
ness, and the employment of lawyers who can reach the ear 
of the court. (Stenographic Record, pages 1901-3.) 

The District Judge is not immediately and solely in charge 
of the administration of bankruptcy estates. Primarily, 
that is the duty of the referees, and the duties of a District 
Judge are wholly judicial and are largely confined to mak¬ 
ing orders of adjudication, orders approving compositions, 
orders of discharge, in hearing petitions to review the decis¬ 
ions of referees, and in other matters of a supervisory 
character. There are five divisions of Judge Speer’s Dis¬ 
trict. If a bankruptcy case is filed in any of these divisions 
in which Judge Speer does not happen to be present, the 
application for adjudication is referred to the referee. If 
there is a petition for a receiver, this is also referred to the 
referee by the clerk. After adjudication the referee calls 
a meeting of creditors, a trustee is elected by the creditors, 
the assets are sold by the trustee under the orders of the 
referee, and the fund is distributed by the referee. The ap¬ 
plication for discharge is addressed to the Judge, and is 
passed on by him, in most cases without objections being 
filed. If Judge Speer is in the Division in which the bank¬ 
ruptcy petition is filed, he. signs a formal order of adjudica¬ 
tion and the clerk refers the case to the referee for action, 
as above stated. If there is a contest over the adjudication, 
the Judge usually refers this to the referee to take evidence 
and make a report with his recommendations. The applica¬ 
tions of atorneys for compensation are usually addressed to 
the Judge, and it is frequently true that such applications 
are referred to the referee, or some other attorney as spe¬ 
cial master, to hear evidence, after notice to parties at in¬ 
terest, and upon his report being filed and notices again 
given parties at interest, the application is passed on by the 
Judge and the fees awarded. This practice of Judge Speer’s 
is set out in 167 Federal Reporter, page 431. No criticism 
has been heard of this practice either from an Appellate 
Court or the Department of Justice. 


297 


When it is considered that probably as many as two hun¬ 
dred bankruptcy petitions are annually filed in this district, 
and that in most of them applications for fees are made by 
the attorneys for the petitioning creditors, and for the 
bankrupt, it is evident that some such proceeding must be 
had in order that the record may be thoroughly examined, 
the condition of the estate determined, and the amount of 
compensation to be awarded ascertained. This results, as 
the records will show, in an economical and satisfactory ad¬ 
ministration of the estate, and expedites the closing up 
of the estates, particularly where the attorneys live 
at distant points in the district. The small amount paid 
the referee or -masters, for taking the testimony and render¬ 
ing this service, has been found in practice to be very bene¬ 
ficial to the estate and to result in moderate but generally 
satisfactory fees to the attorneys. It is also true that when 
atorneys know that their services will be thoroughly investi¬ 
gated, and that their compensation will depend largely on 
the results obtained, they are more diligent in advancing 
the interest of the estate than they otherwise would be, and 
it has been the policy of Judge Speer to allow comparatively 
liberal fees as a reward for profitable results obtained for 
creditors. 

The referees who have had immediate charge and con¬ 
trol of the bankruptcy estates since the enactment of the 
bankruptcy law in 1898, have been men of the highest 
character in the communities in which they live. The 
referees during this period appointed by Judge Speer have 
been: 

The late Alexander Proudfit, of Macon, one of the most 
successful commercial lawyers at the Bar, a man of high 
standing as a citizen and as a lawyer, whose administration 
of bankruptcy estates has probably never been criticised 
by any lawyer who practiced before him. 

John D. Harrell, of Bainbridge, who was United States 
Marshal under Cleveland’s second administration. 

Joseph Hansell Merrill, an ex- judge of the Superior courts 
of the Southern Circuit, and at one time president of the 
Georgia Bar Associaion. 


298 


W. H. Griffin, of Valdosta, for many years Judge of 
the City Court of Lowndes County, and now a member of 
the Legislature from that county. 

W. C. Lane, formerly from Massachusetts, a graduate of 
Yale College, and now a prominent patent lawyer in Des 
Moines, Iowa. 

J. F. McCrackin, the present Referee at Valdosta, also a 
graduate of Yale and other colleges, who is regarded as one 
of the leading members of the Bar in his home town. 

Clayton Jones, of Albany, now Judge of the City Court 
of Dougherty County. 

R. J. Bacon, the present Referee at Albany, who is 
widely known as a successful practitioner of the law. 

Max Isaac, who several of the witnesses before the 
Committee have testified was an ‘‘expert” and an “adept” 
in the bankruptcy law, the author of a book on bankruptcy, 
and a contributor to several legal periodicals. 

A. J. Crovatt, now Referee at Brunswick and ex-Mayor 
of his City and who has been long regarded as a leading 
member of the Southeast Georgia Bar. 

A. H. MacDonell, who has served as Referee at Savan¬ 
nah since the enactment of the bankruptcy law, who had 
been for a long time Judge of the City Court of Savannah; 
the compiler of the City Code of Savannah, and who is a 
most accomplished lawyer and gentleman. 

Joseph Ganahl, Sr., and after his death, Joseph Ganahl, 
Jr., have been the referees at Augusta. The father was a 
distinguished lawyer of more than state-wide reputation. 
The son has, on the occasion of his application for 
re-appointment every two years, presented to Judge Speer 
the almost unanimous endorsement of the Bar of the coun¬ 
ties composing his Referee District. 

Hollis Fort, present Referee at Americas, a prominent 
and widely known lawyer. 

With such men in the actual control of the estates of 
bankrupts, it is difficult to perceive how Judge Speer can 
be charged with the supposed wastefulness of administra¬ 
tion. 

In this connection. Judge Speer begs to call attention to 


299 


the most recent report of the Attorney-General, giving a 
detailed statement of the bankruptcy proceedings in every 
District in the Union. From this it appears that the cost 
of administration, including attorney’s fees, for the year 
ending June 30, 1913, in the Southern District of Georgia, 
amounted to 20.7% of the assets actually realized, while in 
the Northern District of the same State, the percentage of 
such cost of administration was 25.3% of the actual assets 
realized, as will appear from the following statement taken 
from the Attorney-General’s, report for 1913. 



Northern District 
Georgia 

(Judge Newman) 

Southern District 
Georgia 
(J udge Speer) 

Total amount realized from assets. 

$621,686.99 

$338,425.92 

Commissions, referee, trustee, receiver, 
marshal, on amounts paid lien holders 
Amounts deposited with clerk for referee, 

trustee, clerk.. 

Other commissions, receiver, trustee, mar¬ 
shal . 

Attorney’s fees. 

$ 3,829.48 

6,484.55 

28,688.36 

62,952.85 

55,672.15 

$ 3,265.01 

3,529.00 

14,711.25 

26,101.93 

22.756.70 

All other expenses. 

Total costs and expenses. 

$157,627.39 

$ 70,363.89 

Percentage cost of administration based 
on assets. 

.253 

.207 


1 


The statement compiled from the reports of the Attorney- 
General showing the cost of administration in various dis¬ 
tricts as compared with that in the Southern District of 
Georgia, has been submitted to the Committee, and is an¬ 
nexed hereto, and from this it will appear that the costs in 
Judge Speer’s District is lower than in many other dis¬ 
tricts. Those districts have been selected for comparison 
with which the members of the Committee are presumably 
familiar. They are taken from many States, and the state¬ 
ment will convince the Committee that Felder’s charge is 
wholly unsupported. 

It should be borne in mind that much of the expense in 
bankruptcy cases is fixed and allowed by Statute; for in- 






















300 


stance, maximum compensation based on a percentage of 
the amount realized is fixed for receivers, and there is a 
similar maximum on the percentage basis .fixed for the 
trustees, the filing fees of the clerk, referee and trustee are 
fixed by Statute, as are also the commissions and fees of 
the referees. 

The sales of property are made by the trustee, after ten 
days' notice to creditors, and an order of the referee author¬ 
izing such sale. The sales are confirmed by the referee, also 
after notice to creditors. The trustees are elected by the 
creditors; so that so far as sales of property are concerned. 
Judge Speer has no connection with them unless there is 
some petition filed asking him to review the order of the 
referee, authorizing the sale, or approving the sale. 

Again, the disbursements are largely fixed by Statute, 
the exemption, if any, allowed the bankrupt, is determined 
under the laws of Georgia, as are also liens on the property. 
The priority of laborers' claims is fixed by Statute. Prob¬ 
ably more than one-half of the trustees elected in Judge 
Speer's District are personally unknown to him. Only a 
small proportion of the receivers are named by him, as the 
referees in the Judge's absence from the division in which 
they preside, appoint receivers in such cases. Judge Speer 
has never attempted to control the employment of attor¬ 
neys by trustees and when applications are made to him for 
permission to employ attorneys, no suggestion is made by 
him as to the particular person to be employed. Mr. Snod¬ 
grass, in his testimony at Savannah, stated that in one 
branch of the Oliver case, the referee had told him that he 
would have the trustee employ him, Snodgrass, and Aker- 
man, as his attorneys, but that the trustee ‘'went over the 
head" of the referee and obtained an order from Judge 
Speer to employ counsel. The referee has no power to desig¬ 
nate who the attorney shall be. A reference to the record 
in that case will disclose that Messrs. Hawes & Pottle, of 
Bainbridge, were attorneys for the petitioning creditors, 
that Mr. Jones, a banker of Bainbridge, was elected trus¬ 
tee. Under a rule of court made by Judge Speer several 
years ago, no receiver or trustee could be authorized to em- 


301 


ploy as his counsel the attorney for the petitioning cred¬ 
itors, or for the bankrupt, without the special order of the 
District Court. Mr. Hawes represented the petitioning 
creditors, and the trustee desired to employ him because of 
his ability, his knowledge of the case, and as he represented 
no interest conflicting with the interest of the trustee, the 
trustee very properly made his application to Judge Speer 
instead of to the referee. Mr. Snodgrass was wholly mis¬ 
taken in thinking that the trustee was ‘‘going over the head 
of the referee.” 

It is doubtless also true that much of the criticism aimed 
at the Judge of the District Court, is, when properly con¬ 
strued, directed at the bankruptcy law, itself, which is un¬ 
popular in certain sections and for various reasons. In 
this district it is true that fraudulent debtors cannot use 
the bankruptcy court to accomplish their designs, nor can 
large or influential creditors hope to retain preferences 
over less favored creditors. 

The records of every case disposed of in this district are 
in the clerks’ offices in the various divisions, and an exam¬ 
ination of each of them will show that in no case were the 
assets wasted. It may be that creditors have been ofttimes 
disappointed, but that disappointment is often inevitable 
and has been due to the lack of valuable assets on the part of 
the debtor and not to the misconduct of Judge Speer. The 
criticism of courts of bankruptcy will probably continue as 
long as bankruptcy statutes exist. 


302 


STATEMENT SHOWING COST OF ADMINISTRATION 
OF BANKRUPTCY ASSETS FOR THE SOUTHERN 
DISTRICT OF GEORGIA AS COMPARED WITH 
THE DISTRICT OF THE RESIDENCE OF EACH 
MEMBER OF THE JUDICIARY COMMITTEE 
OF THE HOUSE OF REPRESENTATIVES 
OF THE UNITED STATES. 

ATTORNEY-GENERAL’S REPORT, 1899. 


District 

Southern D. of Georgia....? 

Clayton, S. D. Ala. 

Webb, W. D. N. Car. 

Carlin, E. D. Va.. 

Floyd, W. D. Ark. 

Thomas, W. D. Ky. 

DuPree, E. D. La. 

McCoy, D. of N. J. 

Davis, N. D. W. Va. 

McGillicuddy, D. of Maine 

Beall, N. D. Texas. 

Taggart, D. of Kansas.... 

FitzHenry, S. D. Ill. 

Carew-Candler, S.D. N.Y. 

Peterson, D. of Ind. 

Volstead, of Minn. 

Nelson, W. D. Wis. 

Morgan, W. D. Okla. 

Danforth, W. D. N. Y. 

Dyer, E. D. Mo... 

Graham, E. D. Pa. 


Assets 

Expenses 

Pet. 

543.166.20 

? 9,582.74 

.017 

377.830.47 

1,248.47 

.003 

28,065.87 

2,996.31 

.106 

227,926.92 

3,970.56 

.013 

81,500.00 

4,671.00 

.057 

521,268.29 

19,571.74 

.037 

702,051.55 

4,157.07 

.005 

1,208,846.22 

7,691.88 

.003 

142,172.42 

2,570.23 

.017 

306,125.43 

6,603.33 

.021 

646,915.73 

5,707.36 

.008 

286,513.66 

6,345.80 

.021 

184,034.13 

5,889.55 

.032 

1,308,830.46 

29,718.85 

.022 

2,230,617.52 

13,899.49 

.006 

2,362,983.62 

24,058.49 

.01 

358,374.21 

3,939.60 

.01 

61,740,09 

3,422.85 

.055 

1,308,830.46 

29,718.85 

.022 

283,110.36 

815.14 

.002 

624,762.31 

5,322.59 

.008 


General Average of Expenses .023 

Administration in Southern District of Georgia at less .006 



















303 


ATTORNEY-GENERAL’S REPORT, 1900. 


District 

Southern D. of Georgia.. 

Clayton, S. D. Ala. 

Webb, W. D. N. Car. 

Carlin, E. D. Va. 

Floyd, W. D. Ark. 

Thomas, W D. Ky.. 

Dupree, E. D. La.. 

McCoy, D. of N. J... 

Davis, N. D. W. Va. 

McGillicuddy, D. of Maine 

Beall, N. D. Texas. 

Taggart, D. of Kansas. 

FitzHenry, S. D. Ill. 

Carev^-Chandler, S.D. N.Y. 

Peterson, D. of Ind. 

Volstead, D. of Minn. 

Nelson, W. D. Wis. 

Morgan, W. D. Okla. 

Danforth, W. D. N. Y.. 

Dyer, E. D. Mo. 

Graham, E. D. Pa. 


Assets 

Expenses 

Pet. 

319,401.53 

$ 2,041.16 

.006 

75,576.06 

579.23 

.007 

66,740.93 

4,780.89 

.071 

67,741.43 

4,516.51 

.066 

799.529.82 

18,775.45 

.023 

552,790.04 

3,176.70 

.005 

1,209,467.90 

7,391.53 

.006 

138,119.09 

6,180.50 

.044 

1,264,360.91 

8,015.09 

.006 

301,535.27 

6,473.17 

.021 

191,283.61 

4,370.92 

.022 

121,582.00 

8,714.39 

.071 

6,298,313.59 

31,292.09 

.004 

606,942.06 

6,307.05 

.01 

1,594,844.73 

17,102.12 

.011 

311,141.36 

1,792.71 

.005 

42,228.22 

1,318.79 

.031 

286,845.50 

3,738.82 

.013 

283,110.36 

815.14. 

.002 

1,976,424.68 

7,769.07 

.003 


General Average of Expenses .02 

Administration in Southern District of Georgia at less .014 


ATTORENY-GENERAL’S REPORT, 1901. 


District 

Southern D. of Georgia..$ 

Clayton, S. D. Ala. 

Webb, W. D. N. Car. 

Carlin, E. D. Va. 

Floyd, W. D. Ark. 

Thomas, W. D. Ky.. 

Dupree, E. D. La. 

McCoy, D. of N. J. 


Assets 

Expenses 

Pet. 

113,939.58 

$ 8,881.80 

.077 

63,749.25 

2,910.30 

.054 

21,900.39 

3,378.31 

.156 

110,447.39 

14,784.39 

.133 

686,544.74 

160,536.49 

.256 

67,881.02 

789,891.26 

13.66 

50,962.49 

7,808.70 

.153 

































304 


District 

Assets 

Expenses 

Pet. 

Davis, N. D. W. Va. 

41,797.28 

10,048.17 

.24 

McGillicuddy, D.of Maine 

20,241.92 

8,754.92 

.432 

Beal, N. D. of Texas. 

368,188.06 

15,492.50 

. 042 

Taggart, D. of Kansas.... 

97,837.56 

35,847.47 

.358 

FitzHenry, S. D. Ill. 

149,448.14 

17,247.02 

.114 

Carew-Chandler,S.D.N.Y. 

154,913.52 

47,561.32 

.306 

Peterson, D. of Ind. 

270,051.64 

22,471.77 

.083 

Volstead, D. of Minn. 

284.828.78 

36,982.01 

.13 

Nelson, W. D. of Wis. 

399,128.69 

22,298.58 

.055 

Morgan, W. 0. Okla.. 

11,656.98 

2,574.80 

.22 

Danforth, W. D. N. Y_ 

346,758.62 

45,593.33 

.132 

Dyer, E. D. Mo. 

91,669.58 

9,063.30 

.094 

Graham, E. D. Pa.. 

277,067.38 

50,100.03 

.188 

General Average of Expenses 


.813 


Administration in Southern District of Georgia at less .736 


ATTORNEY-GENERAL’S REPORT, 1902. 


District 

Southern D. of Georgia....? 

Clayton, S. D. Ala. 

Webb, W. D. N. Car. 

Carlin, E. D. Va.. 

Floyd, W. D. Ark. 

Thomas, W. D. Ky. 

Dupree, E. D. La. 

McCoy, D. of N. J. 

Davis, N. D. W. Va. 

McGillicuddy, D. of Maine 

Beall, N. D. Texas. 

Taggart, D. of Kansas. 

FitzHenry, S. D. Ill. 

Carew-Chandler,S.D. N.Y. 

Peterson, D. of Ind. 

Volstead, D. of Minn. 

Nelson, W. D. Wis.. 

Morgan, W. D. Okla. 


Assets 

Expenses 

Pet. 

95,121.75 

$12,104.42 

.126 

25,144.54 

3,146.88 

.121 

38.648.70 

5,461.32 

.141 

84,304.13 

11,323.18 

.134 

55,749.00 

4,935.00 

.088 

167,961.30 

28,823.88 

.171 

143,018.85 

25,520.82 

.178 

104,899.00 

21,196.39 

.201 

53,989.19 

7,954.33 

.147 

78,211.25 

13,516.87 

.172 

179,916.86 

7,730.30 

.042 

208,870.15 

16,016.62 

.076 

33,676.47 

3,104.31 

.092 

527,441.15 

54,067.68 

.104 

724.506.03 

35,912.74 

.049 

517,127.30 

59,796.78 

.115 

261,518.86 

19,742.48 

.075 

5,103.85 

590.10 

.154 

























305 


District Assets . Expenses Pet. 

Danforth, W. D. N. Y.$ 266,153.41 $22,385.71 .084 

Dyer, E. D. Mo. 515,904.25 47,121.63 .091 

Graham, E. D. Pa. 466,385.45 77,037.74 .165 

General Average of Expenses .119 

Administration in Southen District of Georgia at more .007 

ATTORNEY-GENERAL’S REPORT, 1903. 


District 

Assets 

Expenses 

Pet. 

Southern D. of Georgia....$ 

158,984.21 

$11,054.44 

.069 

Clayton, S. D. Ala.. 

40,040.51 

3,255.00 

.081 

Webb,.W. D. N. Car. 

28,178.31 

3,718.89 

.132 

Carlin, E. D. of Va. 

68,960.86 

7,999.84 

.116 

Floyd, W. D. Ark. 

45.734.52 

5,202.82 

.113 

Thomas, W. D. Ky. 

186,092.43 

35,066.72 

.188 

Dupree, E. D. La.. 

69,366.88 

16,544.93 

.238 

McCoy, D. of N. J. 

267,316.43 

27,778.13 

.103 

Davis, N. D. W. Va. 

32,943.23 

6,666.71 

.202 

McGillicuddy, D. of Maine 

104,775.63 

17,482.92 

.166 

Beall, N. D. Texas. 

198,724.19 

12,391.80 

.062 

Taggart, D. of Kan. 

175,321.36 

17,207.68 

.092 

FitzHenry, S. D. Ill. 

110,345.39 

17,675.72 

.16 

Carew-Chandler,S.D. N.Y. 

678,682.91 

116,778.96 

.172 

Peterson, D. of Ind. 

292,089.23 

47,655.54 

.163 

Volstead, D. of Minn. 

347,879.36 

51,356.10 

.147 

Nelson, W. D. Wis. 

77,282.88 

13,689.75 

.177 

Morgan, W. 0. Okla. 

13,588.28 

2,917.15 

.214 

Danforth, W. 0. N. Y. 

268,350.51 

33,050.81 

.123 

Dyer, E. D. Mo. 

347,240.92 

63,807.13 

.183 

Graham, E. D. Pa. 

313,636.67 

84,003.58 

.267 

General Average of Expenses 


.155 


Administration in Southern District of Georgia at less .086 






















306 


ATTORNEY-GENERAL’S REPORT, 1904. 


District 

Southern D. of Georgia....$ 

Clayton, S. D. Ala. 

Webb, W. D. N. Car. 

Carlin, E. D. Va. 

Floyd, W. D. Ark. 

Thomas, W. D. Ky. 

Dupree, E. D. La. 

McCoy, D. of N. J. 

Davis, N. D. W. Va.. 

McGillicuddy, D. of Maine 

Beall, N. D. Texas. 

Taggart, D. of Kan. 

FitzHenry, S. D. Ill. 

Carew-Chandler,S.D. N.Y. 

Peterson, D. of Ind..... 

Volstead, D. of Minn.....:... 

Nelson, W. D. Wis.. 

Morgan, W. D. Okla. 

Danforth, W. D. N. Y. 

Dyer, E. D. Mo. 

Graham, E. D. Pa. 


Assets 

Expenses 

Pet. 

327,500.24 

$12,501.55 

.038 

83,541.44 

10,683.72 

.127 

19,606.15 

1,497.86 

.086 

114,898.32 

22,508.83 

.195 

137,248.50 

9,363.15 

.068 

115,305.68 

21,998.87 

.19 

60,607.97 

17,802.79 

.293 

241,018.01 

8,161.67 

.033 

90,160.71 

15,847.69 

.164 

102,113.34 

24,873.37 

.243 

201,721.53 

6,600.86 

.032 

92,491.50 

11,552.72 

.124 

43,154.56 

7,833.52 

.181 

1,687,256.10 

83,408.84 

.049 

351,860.95 

41,492.47 

.117 

451,261.33 

52,828.75 

.117 

325.972.48 

7,028.15 

.021 

44,051.22 

5,683.06 

.129 

586,459.63 

46,733.08 

.079 

243,047.00 

37,574.37 

.154 

489.762.20 

76,775.10 

.156 


General Average of Expenses .119 

Administration in Southern District of Georgia at less .081 


ATTORNEY-GENERAL’S REPORT, 1906. 


District 

Southern D. of Georgia....? 

Clayton, S. D. Ala. 

Webb, W. D. N. Car.. 

Carlin, E. D. Va.. 

Floyd, W. D. Ark. 

Thomas, W. D. Ky. 

Dupree, E. D. La. 

McCoy, D. of N. J. 


Assets 

Expenses 

Pet. 

235,773.27 

$22,773.00 

.096 

160,763.09 

8,751.25 

.054 

76,328.56 

6,559.31 

.087 

136,138.32 

16,705.43 

.122 

98,368.79 

14,400.22 

.146 

116.699.84 

21,508.86 

.184 

122,978.60 

26,682.60 

.216 

132,242.34 

16,735.12 

.126 

























307 


District 

Davis, N. D. W. Va...$ 

McGillicuddy, D. of Maine 

Beall, N. D. Texas. 

Taggart, D. of Kan. 

FitzHenry, S. D. Ill.. 

Carew-Chandler,S.D. N.Y. 
Peterson, D. of Indiana.... 

Volstead, D. of Minn. 

Nelson, W. D. Wis. 

Morgan, W. D. Okla.. 

Danforth, W. D. N. Y. 

Dyer, E. D. Mo. 

Graham, E. D. Pa.,. 


Assets 

Expenses 

Pet. 

114,829.83 

$17,297.97 

.159 

170,399.84 

18,961.30 

.111 

179,210.28 

4,431.72 

.024 

226,399.12 

30,353.03 

.134 

30,492.11 

6,189.98 

.203 

1,106,631.70 

224,443.69 

.202 

407,430.27 

57,649.07 

.141 

408,761.92 

64,574.75 

.133 

180,610.17 

73,910.91 

.409 

133,757.83 

24,312.28 

.181 

455,890.48 

74,300.26 

.162 

238,598.52 

35,605.40 

.149 

496,797.09 

161,091.47 

.324 


General Average of Expenses .165 

Administration in Southern District of Georgia at less .069 


ATTORNEY-GENERAL’S REPORT, 1907. 


District 

Southern D. of Georgia....$ 

Clayton, S. D. Ala.. 

Webb, W. D. of N. Car. 

Carlin, E. D. Va. 

Floyd, W. D. Ark.. 

Thomas, W. D. Ky. 

Dupree, E. D. La... 

McCoy, D. of N. J. 

Davis, N. D. W. Va.. 

McGillicuddy, D. of Maine 

Beall, N. D. Texas... 

Taggart, D. of Kansas. 

FitzHenry, S. D. Ill. 

Carew-Chandler,S.D. N.Y. 

Peterson, D. of Ind. 

Volstead, D. of Minn. 

Nelson, W. D. Wis.. 

Morgan, W. D. Okla.. 


Assets 

Expenses 

Pet. 

183,316.63 

17,537.33 

.095 

83,679.12 

10,190.10 

.121 

90,161.71 

13,686.23 

.162 

108,061.30 

22,018.76 

.203 

75,455.55 

10,167.69 

.134 

133,955.94 

28,091.87 

.209 

58,233.41 

32,133.01 

.551 

325,091.35 

32,194.26 

.099 

31,125.97 

6,176.41 

.198 

202,257.93 

33,471.13 

.165 

58,016.57 

4,251.39 

.073 

345,337.57 

15,084.32 

.043 

134,160.78 

20,777.59 

.154 

1,478,812.19 

311,125.99 

.21 

667,376.63 

81,945.10 

.131 

675,406.37 

103,136.22 

.151 

815,839.17 

94,071.46 

.115 

85,343.01 

25,347.67 

.297 


























308 


District 

Assets 

Expenses 

Pet. 

Danforth, W. D. N. Y.$ 

233,932.61 

$38,973.57 

.166 

Dyer, E. D. Mo. 

941,248.49 

58,256.82 

.061 

Graham, E. D. Pa.. 

817,011.63 

153,886.64 

.188 

General Average of Expenses 


.179 


Administration in Southern District of Georgia at less .084 


ATTORNEY-GENERAL^S REPORT, 1908. 


District 

Assets 

Expenses 

Pet. 

Southern D. of Georgia.... 

$ 244,456.15 

$27,673.91 

.113 

Clayton, S. D. Ala. 

207,455.93 

39,813.41 

.19 

Webb, W. D. N. Car. 

41,305.94 

8,963.11 

.216 

Carlin, E. D. Va. 

122,213.64 

23,020.23 

.188 

Floyd, W. D. Ark. 

46,513.65 

8,530.43 

.185 

Thomas, W. D. Ky.. 

34,344.44 

4,327.34 

.125 

Dupree, E. D. La.. 

123,067.56 

31,902.34 

.251 

McCoy, D. of N. J.. 

354,329.83 

84,154.34 

.237 

Davis, W. D. W. Va. 

313,701.63 

24,909.48 

.079 

McGillicuddy, D. of Maine 

103,965.13 

33,238.03 

.319 

Beall, N. D. Texas. 

464,006.14 

14,681.47 

.031 

Taggart, D. of Kansas.... 

319,148.47 

60,104.32 

.181 

FitzHenry, S. D. Ill. 

367,590.19 

41,089.50 

.111 

Carew-Chandler,S.D. N.Y. 

1,500,370.19 

303,428.05 

.202 

Peterson, D. of Ind. 

606,365.03 

96,196.62 

.158 

Volstead, D. of Minn. 

768,368.25 

81,494.26 

.105 

Nelson, W. D. of Wis.. 

18,746.68 

11,440.53 

.61 

Morgan, W. D. Okla. 

30,583.28 

8,001.37 

.264 

Danforth, W. D. N. Y. 

544,987.19 

99,773.68 

.183 

Dyer, E. D. Mo. 

206,424.24 

32,079.24 

.155 

Graham, E. D. Pa. 

1,774,757.93 

258,116.38 

.145 

General Average of Expenses 


.197 


Administration in Southern District of Georgia at less .084 





















309 


ATTORNEY-GENERAL’S REPORT, 1909. 


District 

Southern D. of Georgia....$ 

Clayton, S. D. Ala. 

Webb, W. D. N. Car. 

Carlin, E. D. Va. 

Floyd, W. D. Ark.. 

Thomas, W. D. Ky. 

Dupree, E. D. La.. 

McCoy, D. of N. J.. 

Davis, N. D. W. Va. 

McCillicuddy, D. of Maine 

Beall, N. D. Texas. 

Taggart, D. of Kan. 

FitzHenry, S. D. Ill. 

Carew-Chandler,S.D. N.Y. 

Peterson, D. of Ind. 

Volstead, D. of Minn. 

Nelson, W. D. Wis. 

Morgan, W. D. Okla. 

Danforth, W. D. N. Y. 

Dyer, E. D. Mo. 

Craham, E. D. Pa. 


Assets 

Expenses 

Pet. 

314,070.04 

$38,552.98 

.122 

191,160.00 

37,619.00 

.196 

76,057.33 

9,717.95 

.127 

243,369.33 

19,371.73 

.079 

40,147.39 

9,693.23 

.241 

239,240.94 

31,179.91 

.13 

58,418.56 

16,673.09 

.285 

156,028.30 

25,452.25 

.163 

237,291.12 

32,401.29 

.136 

377,385.87 

41,282.97 

.109 

434,320.92 

39,359.60 

.09 

1,320,255.00 

83,313.16 

.063 

184,785.69 

34,657.04 

.187 

1,009,325.95 

245,167.94 

.242 

301,839.92 

53,767.89 

.178 

1,236,452.56 

171,887.40 

.139 

165,981.35 

13,331.87 

.08 

105,763.65 

15,001.69 

.141 

364,243.05 

65,480.95 

.179 

142,533.20 

28,783.13 

.201 

975,174.78 

137,608.09 

.141 


General Average of Expenses .159 

Administration in Southern District of Georgia at less .037 


ATTORNEY-GENERAKS REPORT, 1910. 


District 

Southern D. of Georgia..-? 

Clayton, S. D. Ala.. 

Webb, W. D. N. Car. 

Carlin, E. D. Va. 

Floyd, W. D. Ark. 

Thomas, W. D. Ky.. 

Dupree, E. D. La. 

McCoy, D. of N. J.. 


Assets 

Expenses 

Pet. 

206,718.78 

$79,387.39 

.065 

85,017.00 

13,520.00 

.159 

60,863.22 

8,961.98 

.146 

162,843.81 

25,375.52 

.155 

48,632.94 

7,301.36 

.15 

1,088,113.90 

159,663.20 

.146 

202,062.23 

30,490.24 

.15 

336,048.17 

86,393.07 

.257 


























310 


District 

Davis, N. D. W. Va.$ 

McGillicuddy, D. of Maine 

Beall, N. D. Texas. 

Taggart, D. of Kan. 

FitzHenry, S. D. Ill.. 

Carew-Chandler,S.D. N.Y. 

Peterson, D. of Ind. 

Volstead, D. of Minn.. 

Nelson, W. D. of Wis. 

Morgan, W. D. Okla. 

Danforth, W. D. N. Y. 

Dyer, E. D. Mo. 


Assets 

Expenses 

Pet. 

239,196.85 

$45,825.84 

.191 

430,341.72 

44,613.28 

.103 

500,939.53 

29,032.61 

.057 

1,359,176.33 

257,262.46 

.189 

115,779.68 

30,034.66 

.259 

8,201,792.17 

727,373.19 

.088 

615,003.67 

96,330.77 

.156 

1,826,484.38 

416,353.33 

.227 

82,416.01 

19,239.44 

.233 

109,718.73 

24,017.84 

.228 

395,872.95 

69,905.01 

.176 

270,856.16 

54,662.47 

.201 

1,406,762.57 

315,937.96 

.224 


Graham, E.- D. Pa. 

General Average of Expenses .165 

Administration in Southern District of Georgia at less .10 


ATTORNEY-GENERAL’S REPORT, 1911. 


District 

Southern D. of Georgia....$ 

Clayton, S. D. Ala. 

Webb, W. D. N. Car. 

Carlin, E. D. Va..... 

Floyd, W. D. Ark. 

Thomas, W. D. Ky. 

Dupree, E. D. La. 

McCoy, D .of N. J. 

Davis, N. D. W. Va. 

McGillicuddy, D. of Maine 

Beall, N. D. of Texas. 

Taggart, D. of Kan.. 

FitzHenry, S .D. Ill. 

Carew-Chandler,S.D. N.Y. 

Peterson, D. of Ind. 

Volstead, D. of Minn.. 

Nelson, W. D. Wis. 

Morgan, W. D. Okla.. 


Assets 

Expenses 

Pet. 

284,209.36 

$62,336.75 

.219 

203,701.06 

33,891.90 

.166 

181,090.72 

47,998.96 

.265 

238,447.26 

37,763.93 

.166 

60,042.55 

14,010.47 

.233 

274,973.37 



108,131.41 

34,885.27 

.322 

146,547.78 

44,170.19 

.301 

153,730.27 

37,287.73 

.242 

152,000.02 

20,348.01 

.133 

406,496.67 

44,241.79 

.108 

3,052,922.14 

216,698.94 

.071 

168,247.63 

23,844.45 

.201 

7,021,759.68 

697,590.67 

.099 

896,278.78 

118,988.69 

.133 

534,338.85 

84,348.54 

.157 

117,726.87 

35,241.00 

.299 

115,839.40 

33,030.63 

.285 




























311 


District Assets Expenses Pet. 

Danforth, W. D. N. Y.$ 683,066.84 $167,375.45 .245 

Dyer, E. D. of Mo. 446,783.34 77,975.83 .174 

Graham, E. D. of Pa. 1,131,436.59 313,711.39 .277 

General Average of Expenses .199 

Administration in Southern District of Georgia at more .025 

ATTORNEY-GENERAL’S REPORT. 1912. 


District 

Assets 

Expenses 

Pet. 

Southern D. of Georgia.. 

364,090.74 

$71,095.12 

.195 

Clayton, S. D. Ala. 

112,896.52 

14,266.30 

.126 

Webb, W. D. N. Car. 

517,343.45 

48,002.60 

.092 

Carlin, E. D. Va. 

268,178.83 

42,669.79 

.15 

Floyd, W. D. Ark. 

217,003.27 

22,165.32 

.102 

Thomas, W. D. Ky. 

284,460.35 

44,543.64 

.156 

Dupree, E. D. La. 

183,646.56 

34,934.08 

.19 

McCoy, D. of N. J. 

1,414,452.51 

364,678.92 

.257 

Davis, N. D. W. Va. 

460,219.23 

88,866.98 

.193 

McGillicuddy, D. of Maine 

217,767.15 

21,870.79 

.10 

Beall, N. D. Texas. 

473,032.37 

57,571.52 

.121 

Taggart, D. of Kan.. 

414,236.13 

81,953.85 

.197 

FitzHenry, S. D. Ill. 

84,556.03 

16,157.35 

.191 

Carew-Chandler,S.D. N.Y. 

3,121,556.68 

657,655.32 

.21 

Peterson, D. of Ind. 

740,980.77 

110,925.56 

.149 

Volstead, D. of Minn. 

4,288,989.36 

238,810.39 

.055 

Nelson, W. D. Wis. 

92,301.38 

41,293.50 

.447 

Morgan, W. D. Okla. 

376,114.67 

50,552.72 

.134 

Danforth, W. D. N. Y. 

1,044,588.73 

371,979.12 

.355 

Dyer, E. D. Mo. 

444,176.92 

140,361.25 

.316 

Graham, E. D. Pa.. 

1,934,839.52 

247,016.67 

.127 

General Average of Expenses 


.185 

Administration in Southern District of Georgia at more 

i.Ol 






















312 


GRAND AVERAGES OF EXPENSES 

Grand average of the Districts of the members of the 
Committee for the years from v^hich this statement 


is made .192 

For the Southern District of Georgia..095 

For the W. D. of N. C. Mr. Webb’s District..137 

For the W. D. Ark., Mr. Floyd’s District.132 

For the D. of Minn., Mr. Volstead’s District.115 

For the S. D. Ill., Mr. FitzHenry’s District.15 


Administration in Southern District of Georgia v^as .097 
less than the average of the several districts making up 
this statatement. 

Note: The Attorney-General’s Report for 1905 was not 
available when this statement was prepared. 








313 


MISCELLANEOUS. 

The scope of the investigation by your Honorable • Com¬ 
mittee was so extremely broad in its nature, both as to the 
priod of time covered thereby as well as the subject-mat¬ 
ters which were referred to, that it would unduly swell the 
volume of this Statement, already extended, to proportions 
which are not deemed necessary, to refer to each subject. 
All matters which have been considered of sufficient impor¬ 
tance to be the subject of a detailed statement are already 
embraced in what has been above set forth. It has not been 
deemed necessary to reproduce in this Statement the entire 
testimony of Judge Speer when called as a witness at Savan¬ 
nah, and only such references to his testimony at that time 
are made as are indispensable to a clear understanding of 
the subject which this Statement deals with. There are 
other matters not specifically referred to in this Statement 
which can be dismissed with only a passing notice. 

The employment by the Receiver in the Daniels case of 
Mr. Isaac is fully explained in the testimony of Mr. White, 
the receiver. 

In the Electric Supply Company case at Savannah, there 
arose a conflict of jurisdiction between the State Court, 
presided over by Judge Charlton, and the United States 
Court for the Southern District of Georgia. 

After the continuance of a situation to some extent tense 
for a few days, resulting from each of these courts assert¬ 
ing its jurisdiction over the property in controversy, it was 
finally suggested by Judge Speer that this question as to 
the jurisdiction of the respective courts should be submitted 
to the Supreme Court of Georgia, and following this sug¬ 
gestion the Receiver of the United States Court made proper 
application to Judge Charlton for an order recognizing the 
jurisdiction of the United States Court. Judge Charlton 
having refused to grant the order prayed for, the case was 
carried to the Supreme Court of Georgia by writ of error, 
and the views as to jurisdiction maintained by Judge Speer 


314 


were upheld by the Supreme Court of the State in a unani¬ 
mous decision. (White, Receiver, vs. Davis, 134 Ga., p. 274.) 

So far as the question of refusing to dismiss the bank¬ 
ruptcy proceedings in the Electric Supply Co. case is con¬ 
cerned, reference to the record will show that the formali¬ 
ties of the bankruptcy law for the dismissal of such a peti¬ 
tion were not complied with. 

In the Ohlsen case, the defendant was indicted for a viola¬ 
tion of the Statute of the United States prohibiting the kid¬ 
napping of sailors and selling them into practical slavery, 
commonly known as “shanghaing."’ The criticism upon 
Judge Speer as to the trial of this case was that he over¬ 
awed an ignorant and unlettered witness. It appears from 
the testimony that this was a witnes,s who had been called 
for the defense, and Judge Speer admonished him, it is true, 
in all probability in an emphatic and vigorous manner, that 
the consequences would be serious to him if his testimony 
was not in exact accordance with the facts of the case. "Thus 
the Judge took occasion, for reasons which were satisfac¬ 
tory to him at the time, and which the character and ap¬ 
pearance of the witness justified, to warn the witness that 
a material deviation from the truth might result in con¬ 
sequences which were serious to him. The result was, the 
warning was heeded, the witness testified to those things 
only which he knew, and the accused was convicted, and 
properly so. 

Col. J. W. Preston, in his testimony, makes reference to 
what is known as the Roberts case. This was a case which 
had been tried more than twenty years ago. Roberts was 
a postmaster, and was indicted for fraudulently issuing 
money orders and embezzlement of public funds. The tes¬ 
timony of Col. Preston will show that his recollection as to 
the case was in many points uncertain and inaccurate, and 
when his entire testimony is analyzed, it is just one of those 
cases tried when there was a sharp issue between the Gov¬ 
ernment and the accused, and colloquys between Judge and 
counsel, and some irritation and temper manifested on both 
sides; but when the facts and circumstances are consid¬ 
ered to-day in the light of the quiet that has come after 


315 


twenty years, no rational person can come to any other 
conclusion than that the accused was guilty, and the judg¬ 
ment was the only appropriate judgment that could have 
been rendered under the circumstances of the case. 

It is also not amiss to state that this aged and venerable 
member of the Bar, although sharp in some of his criticisms 
in regard to the rulings and conduct of the Judge in this 
particular case, took occasion to say that he considered 
Judge Speer a man of the highest order of intellect, and a 
Judge who- presided with greater dignity and preserved 
more perfect decorum than any other judge he had ever seen. 

With reference to the litigation concerning the two street 
railways in Savannah, referred to by Mr. Osborne, it is only 
necessary to state that this litigation arose out of a rate 
war between the two lines of street railway, and the Court 
took jurisdiction at the instance of parties interested in 
order to save the disastrous results to the property and to 
the public by this ruinous form of competition. After the 
Court had obtained jurisdiction in the manner indicated 
other suits grew out of the initial suit, and finally a compli¬ 
cated litigation arose, which ultimately resulted in the resto¬ 
ration of normal conditions as to the street railway affairs 
of the city. 

In the case of Thomas vs. Atlantic Coast Line Railroad, 
Mr. Osborne, one of the attorneys for the plaintiff, makes 
the criticism upon the Judge that he was more favorable 
to his client than he should have been, and unfair to the 
railroad company. When the facts of this case are con¬ 
sidered, even as they appeaer from the testimony of Mr. 
Osborne himself, it is manifest that the right result was 
reached in the case, and that the Judge did not exceed the 
bounds which the law prescribes for a judge in summing up, 
or in the superintendence of the trial under the law and 
practice which is of force in the courts of the United States. 

Complaint is made in some instances about the size of 
fees allowed to attorneys in bankruptcy cases and proceed¬ 
ings in equity where the court would tax the fund in court 
with the fees of counsel. Under the uniform practice estab¬ 
lished in this District by Judge Speer, all fees of this 


316 


character are fixed by references to special masters, after 
due notice and formal hearing. The reports of these mas¬ 
ters in all cases are of file, showing the extent of the serv¬ 
ices rendered, and the value of the estate. Under the rule, 
notices of the filing of the reports of the special master are 
mailed to all interested, and with few exceptions the reports 
were unexcepted to, and the Court simply affirmed the find¬ 
ing of the master's report as of course. In some instances 
where exceptions were taken to the master’s report, the fees 
of counsel were reduced, and in other instances they were 
increased. The most rigid scrutiny of the record in each of 
these instances will show that in no case was a fee allowed 
which was extravagant or exorbitant when the services 
rendered and the facts and circumstances of the case are 
duly considered. 

The case of Rankin vs. Louisville & Nashville Railroad 
Company referred to in the testimony of Mr. Geo. S. Jones, 
was an action by a minor ten years of age for the homicide 
of his mother. The case was stubbornly contested, consum¬ 
ing much time in trial, and during the progress of the case 
there were numerous colloquys between the court and 
counsel, and numerous exceptions noted, complaining of 
alleged errors committed by the Judge during the progress 
of the case. This trial was reviewed upon writ of error 
by the Circuit Court of Appeals upon an elaborate bill of 
exceptions in which every incident of the trial that could 
be possibly made a subject of exception was assigned as 
error, and that appellate tribunal, after argument and con¬ 
sideration of the record, fully affirmed the action of Judge 
Speer, without preparing an opinion, the case being dis¬ 
posed of by a mere Per Curiam memorandum. 


317 


CONCLUSION. 

Under the procedure which it has been thought proper 
to adopt in this inquiry, the Committee has probably heard 
every individual who has a sincere or pretended grievance 
against Judge Speer. When it is reflected that his judicial 
labors have extended through well-nigh the period of a gen¬ 
eration, and also that there are included in his District 
nearly a million and a half of inhabitants, the grievances 
are as few in number as they have been shown unfounded 
in fact. The Committee has not heard from his friends, 
they have been given no opportunity to search the minds 
of the impartial. Had this been done, it would have been 
ascertained that Judge Speer is not without kindly appre¬ 
ciation by the noble people among whom he was born, whom 
he has served, and not only respects but loves. Had it 
been permitted, his contemnors, would have been over¬ 
whelmed by a mass of evidence from the upright, the patri¬ 
otic and the good. The people of Georgia have lost few 
opportunities to show him their confldence and respect. 
When the great International Exposition of 1895 was con¬ 
vened at our capital, he, of all Georgians, was selected to 
make the opening address and welcome the representatives 
of the nations to that marvellous demonstration of the re¬ 
sources of his native State. A graduate of the University 
of Georgia, when but tweny-three years of age, he was 
called upon to make a principal address at its commence¬ 
ment. When one hundred years of the existence of that 
famous institution of learning had elapsed, upon him was 
cast the duty of its alumni to make its Centenary Address. 

But not by his Alma Mater only and those she has sent 
forth, has been made plain the confidence of the people in 
the man and the Judge. For twenty-two successive years, 
by vote of its Board of Trustees, his has been the honor of 
Dean of the Law Faculty of Mercer University. Think, you 
Mr. Chairman, and Gentlemen of the Commitee, that the 
wise and sagacious representatives of the two hundred and 


318 


eighty thousand members of the Church of Spurgeon and 
Bunyan in the State of Georgia, would have chosen an un¬ 
worthy man to train their young men in the Constitution 
and Laws of our common country? By the same Board 
upon him was unanimously conferred the highest degree 
they can bestow on layman or lawyer. And it was at the 
college of his own creed, bearing the name bestowed at his 
birth by his youthful parents, at Emory College, he first 
spoke of that name whom all Americans now honor—the 
name Robert E. Lee. 

But the appreciation of this American Judge has not 
been confined to Georgia alone. Six years later, on that same 
illustrious theme his was the honor to speak at that great 
University of Virginia, of which Thomas Jefferson was the 
founder. 

In April, 1898, he had been summoned by the people of 
northern Illinois to speak at Galena on the birthday and at 
the home of Lee’s greatest foeman. General Grant. Ever 
an advocate pf the re-unification and fraternal relation be¬ 
tween the people of our once dissevered land, it was his privi¬ 
lege then and there to announce that day that the grand¬ 
son of Grant, in our w’ar with Spain, had taken a commis¬ 
sion as the officer and comrade of the nephew of Lee. 

In October of the same year, in the great Auditorium in 
Chicago, it was his honor to speak from the same stand and 
follow Arch-Bishop Ireland, before President McKinley and 
eight thousand Americans gathered there at the Jubilee 
commemorative of the latest victory of the Stars and 
Stripes. 

Three years later at the invitation of the unanimous Sa¬ 
vannah Bar, on the celebration of the Centenary of John 
Marshal’s appointment to the Supreme Bench, Judge Speer 
spoke there in the memory of the great Chief Justice. 

At Yale University on the Storrs foundation, before the 
Independent Club, of Buffalo, before the Hamilton Club, of 
Chicago, and in the City of New York, at the express invi¬ 
tation of his son, at the centenary of Abraham Lincoln, 
Judge Speer also spoke. 


319 


In many another address, in many charges to the Grand 
Jury, on every appropriate occasion, he has striven to in¬ 
culcate the truth in which he believes that 

He best loves and serves his State 
who country loves and serves the best. 

Less than a year ago a movement, yet in progress, to 
divide his District and decrease his territorial jurisdiction 
was instituted by the leaders of those who attempted depre¬ 
ciation of him is before the Committee now. Five suc¬ 
cessive terms of the court were soon held in five separate di¬ 
visions of his District. At each, the Grand Jury selected by 
law from the noble jury body, the commissioners appointed 
by him had chosen, assembled to the performance of their 
duty. Before each Grand Jury had adjourned they pre¬ 
sented the Court a fervent protest against the proposed leg¬ 
islation. A copy of these presentments, certified conform¬ 
ably to law, is hereto appended. From the unsolicited and 
generous expressions of these ninety and nine grand jurors 
of the Southern District of Georgia, Georgians whose names 
and homes are given, the Committee can determine how 
undeserved are the aspersions the malevolent have sought to 
cast upon him, how unmerited the defamations which, under 
the methods of his accusers, while he was helpless and voice¬ 
less, have been spread throughout the length and breadth of 
the land, and it may also gather the irreparable injury which 
such methods may inflict upon • the American judiciary, 
whose fearless independence was once, but may be no longer, 
the chief glory of the American system. 

Respectfully submitted, 

EMORY SPEER. 

ANDREW J. COBB, 

E. H. CALLAWAY, 

W. M. HOWARD, 

ORVILLE A. PARK, 

GEO. W. OWENS, 
of Counsel. 

Macon, Georgia, February 18, 1914. 


320 


EXHIBIT. 


A MEMORIAL AGAINST THE CREATION OF AN AD¬ 
DITIONAL JUDICIAL DISTRICT CARVED FROM 
THE TERRITORY OF THE SOUTHERN DIS¬ 
TRICT OF GEORGIA, BY THE GRAND 
JURIES THEREOF. 


IN re: 

THE PROPOSED DIVISION OF THE SOUTHERN DISTRICT OF GEOR¬ 
GIA, AND THE CREATION OF AN ADDITIONAL JUDICIAL 
DISTRICT. 

The Southern District of Georgia is divided into five divis¬ 
ions, the Eastern Division with court at Savannah; the 
Western with court at Macon; the Northeastern with court 
at Augusta; the Southwestern with court at Valdosta, and 
the Albany with court at Albany. 

Protests of the Grand Juries in each division, against the 
creation of an additional Judicial District and the reasons 
each Grand Jury assigns therefor. 

RESPECTFULLY SUBMITTED TO THE HONOR¬ 
ABLE, THE SENATORS AND REPRESENTATIVES, 
IN CONGRESS, THE PRESIDENT OF THE UNITED 
STATES, AND THE ATTORNEY-GENERAL, as re¬ 
quested by Grand Juries, and as a Memorial and Protest 
against the creation of an Additional Judicial District out 
of the territory of the Southern District of Georgia. 

The Grand Jury of the Eastern Division, composed of 
the counties of Appling, Bulloch, Bryan, Camden, Chatham, 
Emanuel, Effingham, Glynn, Jeff Davis, Liberty, Montgom¬ 
ery, McIntosh, Screven, Tattnall, Toombs and Wayne, with 
Court at Savannah, on the 21st day of February, 1913, then 




321 


in session and before Adjournment, made to the Court, the 
Address following: 

To the Hon. Emory Speer, Jmdge of the United States Court, 

Presiding : 

We, the Grand Jury of this, the February term, 1913, of 
this Court, in taking leave of the Court, desire to express 
our sincere thanks to the District Attorney, his Assistant, 
the Marshal and all other officers of this Court for the many 
kindnesses and courtesies extended to us during the present 
service. 

We take peculiar pride in having served at the time when 
your Honor had the distinction of celebrating the 28th anni¬ 
versary of your accession to the bench in this Court. We 
heartily congratulate you, and wish you many more years 
of active service in your present lofty position. 

The faithful, fearless and able service rendered your State 
and country has attracted attention far and wide. No judge 
has rendered nobler service, no one has striven harder to do 
his full duty without respect to persons. We have noted with 
pleasure and interest the manner in which even-handed 
justice is administered in this Court alike to the rich and 
to the poor. 

We observe that there are no professional jurors, and no 
jury exemptions in this court, thus insuring the best calibre 
of jurymen. 

Your labors in this district have been of greatest value 
to the country. The able charge of your Honor to this body 
has forcefully reminded us of the true principles of Ameri¬ 
can government. 

We beg specially to commend your clemency in permitting 
our poor people to go to their homes and make their crops 
before the sentence of the court is enforced.* 

In these days when the law is endeavoring to place its 

*This reference of the Grand Jury at Savannah is to the estab¬ 
lished practice of the Court to allow poor men and “croppers” to culti¬ 
vate and gather their crops before they are sentenced for slight violations 
of the Internal Revenue Laws. By this, great loss to the farming com¬ 
munity and actual suffering and hunger in their families are averted. 



322 


strong hand upon the violators of the Statutes against 
corners in cotton, grain and other necessities of life, who 
depress or raise prices at will to the detriment of honest 
business and the ruin of the people, and when it is honestly 
endeavored to prevent the lawless sale of intoxicants in this 
State, which the Courts of the State have attempted in vain 
to do, and which this Court alone can successfully do, the 
country cannot afford to part with such judges as you have 
certainly proved yourself to be. 

Representing as many as sixteen counties of this District, 
we deplore the movement to divide this District. It is our 
firm conviction that there is no use for it. The dockets here 
show no congestion, nor does other cause exist for such 
division. 

We respectfully call attention to the fact that all the peo¬ 
ple of the District are equally concerned with the people 
of this city in this important matter, largely because the 
terminals of the great railroads and steamship lines of this 
section are located here and inland shippers of this section 
must come here to obtain relief from oppressive rates or 
other unlawful exactions. 

We beg to enter this our protest to any movement to divide 
this District and present this address to the Court with the 
hope that your Honor will cause copies thereof to be trans¬ 
mitted to our Senators and Representatives in Congress, to 
the Department of Justice and to the President of the 
United States, and that the same be spread upon the min¬ 
utes of this Court. 

This February 21, 1913. 

Respectfully submitted, 

(Signed): 



POSTOFFICE 

COUNTY 

L. H. Kingery, Foireman Pulaski 

Bulloch 

W. D. Rogers, Secretary Manassas 

Tattnall 

Orren Burke 

Rocky Ford 

Screven 

Malcolm J. Ennis, 

Dover 

Screven 

M. D. Oliff 

Statesboro 

Bulloch 

M. V. Fletcher 

Statesboro 

Bulloch 

H. I. Waters 

elite 

Bulloch 

Daniel Buie 

Statesboro 

Bulloch 


323 


C. R. Metzger 
W. H. Harrelson 
H. D. Brown 
J. W. Johnson 
A. D. Laurence 
J. L. Hutchinson 
M. M. Griner 
Lee Jones 
J. H. Moore 
A. L. Davis 
E. P. Kennedy 
William H. Wood, Jr, 
W. B. DeLoach 


Clyo 

Egypt 

Graymont 

Garfield 

Thrift 

Hubert 

Groveland 

IManassas 

Reidsville 

Groveland 

Collins 

Daisy 

Brunswick 


Effingham 

Effingham 

Emanuel 

Emanuel 

Jenkins 

Bulloch 

Bryan 

Tattnall 

Tattnall 

Bulloch 

Tattnall 

Glynn 

Bulloch 


The Grand Jury of the Western Division, composed of 
the Counties of Baldwin, Bibb, Butts, Crawford, Dodge, 
Dooly, Hancock, Houston, Jasper, Jones, Laurens, Macon, 
Monroe, Pike, Pulaski, Putnam, Sumter, Telfair, Twiggs, 
Upson, Wilcox, and Wilkerson, with court at Macon, on the 
18th day of January, 1913, then in session and before ad¬ 
journment, made to the Court, the Address following: 

To the Hon. Emory Speer, Jticlge of the United States Court, 

Presiding : 

We, the Grand Jury, now in session, as a body, and as in¬ 
dividuals, thank your Honor, and through you the officials 
of your Court, for the courtesy shown us. Because of the 
consideration accorded jurors in your Court, jury service 
has become almost a pleasure. 

We recall the time when unfortunately the United States 
Courts, as conducted in this District, failed to enjoy the or¬ 
dinary respect of citizens of the community, and were usually 
referred to in any save complimentary terms. We remember 
with appreciation, the reform of Court and Jury Body im¬ 
mediately after your accession to office, and the fact that 
since that time the best men of the community have been 
selected as jurors. Prosecutions for trivial violations of 
the revenue laws prevalent in former days were supppressed 
by your Honor and your humane treatment of those since 
convicted has brought about a practical cessation of im¬ 
portant violations. The United States Courts of this Dis- 




324 


trict are, now referred to by our citizens in terms of highest 
respect, and your Honor is alone responsible for this change 
in sentiment. 

Your Courts have been of great value to this section of the 
country. We have seen the settlement of land titles in South 
Georgia bring great wealth to our cities from orderly busi¬ 
ness in that rich section. We have seen the plans of rail¬ 
road wreckers defeated, interstate commerce and anti-trust 
laws enforced, members of trusts convicted, and embezzlers 
of millions actually placed within the walls of a penitentiary. 

It has been our pleasure, as citizens of this community, to 
observe that the richest and most powerful are accorded no 
protection which is not extended as freely to the poorest man 
in the land or the most hepless orphan. Your leaning, if 
any, has been toward the poor and oppressed, rather than 
the rich and powerful. 

The kind consideration always given the youngest law¬ 
yers practicing in your Courts receives the most favorable 
comment. 

We trust it is not out of order for us to say that we recog¬ 
nize in the Judge of the Court a man fearless in discharge 
of duty, and without reproach in official or private life. 

Passed unanimously by this Grand Jury, the 18th day of 
January, 1913. 

(Signed): 



POSTOFFICE 

COUNTY 

L. McManus. Foreman 

Macon 

Bibb 

]M. M. Lowery, Secretary Americus 

Sumter 

W. E. Dunwody 

Macon 

Bibb 

E. S. Vinson 

Milledgeville 

Baldwin 

W. C. Jones 

Mansfield 

Jasper 

W. M. Stephens 

Macon 

Bibb 

F. L. Mallary 

Macon 

Bibb 

J. H. C. Ethridge 

Grays 

Jones 

R. 0. Collins 

Montezuma 

Macon 

Guy Armstrong 

Macon 

Bibb 

Chas. A. Fricker 

Americus 

Sumter 

A. N. Smith 

Juliette 

Jones 

W. J. Wood 

James 

Jones 

J. D. Donaldson 

Dublin 

Laurens 

J. C. Martin 

Milner 

Pike 

O. I. Hilbun 

Dublin 

Laurens 

E. Tris Napier 

Macon 

Bibb 


325 


The Grand Jury of the Northeastern Division, composed 
of the counties of Burke, Columbia, Glascock, Jefferson, 
Jenkins, Johnson, Lincoln, McDuffie, Richmond, Taliaferro, 
Washington, Wilkes and Warren, with court at Augusta, 
on the 19th day of April, 1913, then in session and before 
adjournment, made to the Court the Address following: 


Augusta, Ga., April 19, 1913. 


To the Hon. Emory Speer, Judge of the United States Court, 
Presiding : 


We, the Grand Jurors, for the April term, 1913, of the 
United States District Court, for the Northeastern Division 
of the Southern District of Georgia, at the conclusion of our 
labors, desire to express to you, and to the other officers of 
the Court, our appreciation of the many courtesies shown us. 

We also, in behalf of ourselves and the entire District 
desire to express our particular appreciation of your able 
and clear charge to us at the beginning of our work. 

We feel that this District is indeed fortunate in having a 
Judge of so much ability and learning to preside over its 
Courts, and view with alarm the rumor that an attempt will 
be made to divide the District. We, therefore, respectfully 
request our Senators and Members of Congress to oppose 


any such movement. 

Assuring your Honor of our best wishes for your personal 
welfare, and most earnestly wishing for an uninterrupted 
administration of your office over the entire and undivided 
District. 


(Signed): 

Paul Mustin 
Jas. M. Rosier 
H. P. Burum 
J. A. White 
Geo. F. Claussen 
C. W. Dozier 
T. O. Gunn 
J. M. Walker, Foreman 
L. H. Cowart 


Respectfully submitted, 

POSTOFFICE 
Augusta 
Augusta 
Augusta 
Augusta 
Augusta 
Hilman 
Crawfordville 
Bath 
Millen 


COUNTY 

Richmond 

Richmond 

Richmond 

Richmond 

Richmond 

Taliaferro 

Taliaferro 

Richmond 

Jenkins 


326 


P. H. Rice 
R. B. Bryan 
R. T. Hodges 
C. A. Matthews 
L. P. Neel 
J. G. F. ]\I. Johnson 
W. S. Boyd 
W. H. Hickson 
W. A. Phillips 
E. G. Dent 
J. F. Neely 


Augusta 

Wrightsville 

Oconee 

Matthews 

Thomson 

Thrift 

Spread 

Midville 

Harlem 

Waynesboro 

Waynesboro 


Richmond 

Johnson 

Washington 

Johnson 

McDuffie 

Jenkins 

Jefferson 

Burke 

Columbia 

Burke 

Burke 


The Grand Jury of the Southwestern Division, composed 
of the counties of Berrien, Brooks, Charlton, Clinch, Coffee, 
Decatur, Echols, Grady, Irwin, Lowndes, Pierce, Thomas 
and Ware, with court at Valdosta, on the 12th day of Decem¬ 
ber, 1912, then in session and before adjournment made to 
the Court, the Address following: 

The United States Grand Jury for the Southwestern Divis¬ 
ion of the Southern District of Georgia, assembled at Val¬ 
dosta, Georgia. 

WHEREAS, It is being rumored that an effort will be 
made in the near future to have Congress pass an Act cre¬ 
ating a new District in the State, the southern portion 
thereof to comprise the proposed new District, and 

WHEREAS, It is the sense of this Grand Jury that there 
is not only no good reason why such should be done, but 
on the contrary many good reasons why it should not be done, 
among others, to-wit: That the laws of the United States 
are, under the present status of territorial division, and 
under the able, distinguished, impartial and courageous 
Judge, now presiding over said District, being effectively 
and fairly administered, and 

WHEREAS, The people of the State of Georgia, and par¬ 
ticularly of the Southern District, fully recognize the bene¬ 
fits they enjoy from the impartial and fearless enforcement 
of the laws to regulate interstate commerce and prevent 
combinations in restraint of trade, and the creation of 
monopoly, known as the anti-trust laws, by Honorable 
Emory Speer, the present District Judge, and 



327 


WHEREAS, The removal or withdrawal of Judge Emory 
Speer from this portion of the District which might be occa¬ 
sioned by any new territorial division of the State or the 
Southern District thereof would, in our opinion, be a dis¬ 
tinct loss to the people of said District, and, after so many 
years of association, a matter of keen regret, and 

WHEREAS, It should be the policy of Congress to prevent 
the waste of public money by the creation of new and un¬ 
necessary judgeships, district attorneyships, marshalships 
and the like. 

THEREFORE BE IT RESOLVED, That it is the sense of 
this Grand Jury that any movement to make any change 
whatever in the territorial division of the State of Georgia, 
so far as it would affect the jurisdiction of the United States 
District Court for the Southern District of Georgia, should 
meet with the instant disapproval of all the people of said 
Southern District of Georgia. 

RESOLVED FURTHER, That a copy of these resolutions 
be spread upon the minutes of this Court. 

RESOLVED FURTHER, That a copy of the same be fur¬ 
nished The Valdosta Times for publication. 

RESOLVED FURTHER. That the Clerk of this Court 
be requested to send a certified copy of these resolutions to 
the Senators and Representatives of the State of Georgia 
and to the Chairmen of the Senate and House Judiciary 
Committees and to the Attorney-General and President of 
the United States, with the request that should an effort be 
made in the Congress of the United States to create a new 
District in this State, which would affect the Southern Dis¬ 
trict of Georgia, as it now is, that this Resolution be used as 
a Memorial to Congress in opposition to such measure. 

This 12th day of December, 1912. 


(Signed): 



POSTOFFICE 

COUNTY 

C. C. Brantley, Foreman Valdosta 

Lowndes 

T. H. Calhoun, Secretary Beach 

Ware 

William Edwards 

Valdosta 

Lowndes 

Randall Davis 

Blackshear 

Pierce 

Jesse N. Pafford 

Pearson 

Coffee 


328 


W. I. Highsmith 
Dennis Vickers, Sr. 
A. C. Dickey 
Jacob McMillan 


J. E. Webb 

K. Powell 


Hahira 

Cairo 

Argyle 

Ambrose 

Beach ton 

Osierfield 

Fairfax 

Fairfax 

Lake Park 

Lenox 

Bainbridge 

Alapaha 

Valdosta 

Cecil 

Bainbridge 

Morvin 


Lowndes 

Grady 

Clinch 

Coffee 

Thomas 

Irwin 


Daniel Smith 
W. G. Lanier 
J. D. Corbett 
D. B. Lott 


Ware 

Ware 


J. S. Thomas 
J. J. Paulk 


H. W. Martin 
P. T. Kendall 


W. F. Arnold 
F. N. Bray 


Lowndes 

Berrien 

Decatur 

Berrien 

Lowndes 

Berrien 

Decatur 

Brooks 


The Grand Jury of the Albany Division, composed of the 
counties of Baker, Ben Hill, Calhoun, Crisp, Colquitt, 
Dougherty, Lee, Miller, Mitchell, Tift, Turner and Worth, 
with Court at Albany, on the 17th day of December, 1912, 
then in session and before adjournment, made to the Court 
the Address following: 

The United States Grand Jury for the Albany Division of 
the Southern District of Georgia, in session at Albany, 
Georgia: 

It is understood by us that there will be made in the near 
future an effort to have Congress create a new District in 
the State, of Georgia, the Southern part of our State to 
comprise this new District, and, 

WHEREAS, This Jury can see no good reason why this 
should be done, but for many good reasons why it should 
not be done, to-wit: That we now have in this, the Albany 
Division, a distinguished, impartial and courageous Judge 
presiding and in all cases the laws of the United States are 
forcibly, fairly and justly administered, and, 

WHEREAS, The people of Georgia, and especially the 
people of the Southern District are fully cognizant of the 
great benefits which have come to them through the United 
States Court under a Judge who fearlessly and impartially 
administers the law, and. 



329 


WHEREAS, The business of the, Southern Division of 
the State of Georgia with its present divisions is not more 
than one able Judge like his Honor, Judge Emory Speer, can 
expeditiously and easily discharge, and we deplore any 
movement to make a division where another Judge will be 
appointed, thereby increasing unnecessarily the burdens in¬ 
volved and the extra expense of maintaining two courts 
where one is ample in the territory, and, 

WHEREAS, It should be the policy of Congress to pre¬ 
vent waste in public moneys by creating any unnecessary 
judgeships, district attorneyships, marshalships and the 
like, 

THEREFORE, It is the sense of this Jury that the cre¬ 
ation of another District would be unnecessary and unwise. 

THEREFORE, Be it further resolved, that a copy of 
these resolutions be spread upon the minutes of this Court. 

RESOLVED, FURTHER, That a copy of the same be fur¬ 
nished The Daily Herald for publication, and that the Clerk 
of this Court be requested to send a certified copy of these 
Resolutions to the Senators and Representatives of the State 
of Georgia, and to the Chairmen of the Senate and House 
Judiciary Committees, and all others in authority whose 
influence in such matters alfect the public welfare, and that 
this Resolution be a memorial to Congress in opposition to 
the proposed unnecessary and unwise movement. 

This the 17th day of December, 1912. 


(Signed) : 


J. R. Mott, Foreman 
W. L. Butler 
W. J. Kidd 

B. H. Askew 

C. J. Ganekea 

C. E. Adams 
Frank Crews 

D. L. Wooten 
Samuel Weldon 
F.J. Clark 

J. R. Mason 
C. E. Fryer 
Gordon Meriwether 


Albany 

Albany 


Arlington 
Smith ville 
Newton 
Leesburg 


Albany 

Camilla 

Leary 


POSTOFFICE 


Tifton 

Albany 

Albany 


Fitzgerald 


COUNTY 

Dougherty 

Mitchell 

Calhoun 

Calhoun 

Lee 

Baker 

Lee 

Dougherty 
Dougherty 
Ben Hill 
Tift 

Dougherty 

Dougherty 


330 


L.T. Brown ' Sale City Mitchell 

C. G. Bennett Albany Dougherty 

A. V. Rodgers Moultrie Colquitt 

T. F. Walker Moultrie Colquitt 

Dan Brosnan Albany Dougherty 

P. S. Burton Smithville Lee 

A. L. Sterne, Secretary Albany Dougherty 


» 


IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE SOUTHERN DISTRICT OF GEORGIA. 

I, Cook Clayton, Clerk of the District Court of the United 
States for the Southern District of Georgia, do hereby cer¬ 
tify, that the above and foregoing is a true copy of the ad¬ 
dresses of the Grand Juries of the Southern District of 
Georgia, which said addresses were read in open Court 
on the dates set out therein, and are on file in my office. 

In Witness Whereof, I have hereunto set my hand and 
affixed the seal of said Court, this 17th day of Febrdary, 
1914. 

COOK CLAYTON, Clerk. 

By Lenoir M. Erwin, Deputy Clerk. 


UNITED STATES OF AMERICA, 

SOUTHERN DISTRICT OF GEORGIA—ss. 

I, Emory Speer, Judge of the District Court of the United 
States for the Southern District of Georgia, do hereby cer¬ 
tify that Cook Clayton, who signed the within Certificate 
is, and was at the time of signing the same. Clerk of the 
District Court of the United States for the Southern Dis¬ 
trict of Georgia; that full faith and credit ought to be 
given to his acts and attestations given as such, and that 
his said Certificate and Authentication of the foregoing 
transcript is in due form. 

In Witness Whereof, I have hereto set my hand this 17th 
day of February, in the year of our Lord One Thousand 
Nine Hundred and Fourteen. 

EMORY SPEER, 

Judge of the District Court of said District. 





331 


UNITED STATES OF AMERICA, 

SOUTHERN DISTRICT OF GEORGIA—ss. 

I, Cook Clayton, Clerk of the District Court of the United 
States for the Southern District of Georgia, do hereby cer¬ 
tify that the Honorable Emory Speer, who signed the above 
Certificate, is, and was at the time of signing the same, a 
Judge of the District Court of the United States for the 
Southern District of Georgia, duly commissioned and qual¬ 
ified ; and that full faith and credit ought to be given his acts 
and attestations given as such. 

In Witness Whereof, I have hereto set my hand and seal 
of said Court this . 17th day of February, in the year of our 
Lord One Thousand Nine Hundred and Fourteen. 

COOK CLAYTON, 
Clerk of the Court of said District. 

By Lenoir M. Erwin, Deputy Clerk. 






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INDEX 


PAGE 


Preliminary Considerations. 1 

Judge Speer, ‘‘a misfit,” Lawrence. 5 

Testimonials to Judge Speer^s Excellence of Judicial Character 
After Eighteen Years of Judicial Service and When Fifty-Five 
Years of Age: 

The Savannah Bar . 9 

The Savannah Business Men . 14 

The Augusta Bar . 20 

The Augusta Business Men. 22 

Resolution of Mayor and Council of Atlanta . 24 

Resolution of Mayor and Council of Macon . 25 

Resolution of Chamber of Commerce of Macon. 26 

Resolution of Macon Bar Association. 29 

Resolution of Prudential Committee, Mercer University. 31 

Resolution of Emancipation Association, Bibb County. 33 

Hon. W. H. Hotchkiss. 35 

Hon. Augustin T. Smythe. 36 

Hon. Adelbert Moot . 37 

Hon. John Skelton Williams. 38 

Hon. Joseph M. Terrell. 39 

Hon. John C. Hart. 39 

Hon. Boykin Wright. 40 

Hon. Geo. F. Edmunds. 41 

Capt. J. T. Gaines. 43 

Gen. Joseph H. Lewis. 45 

Hon. John E. Hartridge. 46 

Order of Railway Conductors, Macon Division. 48 

Hon. Ed. Porter Thompson. 49 

Hon. W. A. Blount. 50 

Hon. C. C. Kohlsaat. 51 

Gen. James H. Wilson. 52 

Hon. J. C. Pritchard. 53 

Mr. William E. Dodge. 54 

Hon. Jacob Phinizy. 55 

Hon. L. A. Shaver. 56 

Hon. Martin V. Calvin. 57 

Mr. Charles L. Lewando. 58 

Hon. Frank Irvine. 59 

Hon. H. M. Hanna. 

Rev. Lyman Abbott. 

Hon. John H. Hamline. 









































334 


PA.G5 

Hon. Dudley M. Hughes. 65 

Grand International Brotherhood of Locomotive Engineers.... 66 

Hon. Franklin K. Lane. 67 

The Jamison Habeas Corpus Case. 68 

C. Nottingham, Akerman, Wimberly, Connor, Wimbish. 

The Huff Case. 79 

Huff and Felder. 

King Loan . 101 

W. E. Simmons, Meldrim, Mackall. 

W. E. Simmons and Corbin Banking Company, Loans. 110 

Complaint of W. H. Burwell. 117 

Geo. C. Hall Case. 119 

Akerman and Smith. 

Criticisms of W. A. Harris. 125 

Matthews vs. Brotherhood, Johnson vs. Southern Railway. 

E. P. Davis Fine. 129 

Rigdill-Ellis Complaint. 131 

Letter Hon. Judson C. Clements. 139 

Criticisms of W. C. Snodgrass. 140 

Hopkins vs. Bank, A. D. Oliver Case. 

Conduct in Raising Fee of Others that Son-in-Law Might Profit 

thereby . 145 

Akerman. 

The Scarboro Case. 151 

Akerman. 

Fines of Kearney, Emma and Mulholland.,. 159 

Allowing Money to Remain on Deposit Without Interest. 161 

Huff, Felder and Garrard. 

E. B. Harris Case... 166 

E. B. Harris, Akerman. 

Hecht Joseph Dry Goods Co.. 175 

Geo. S. Jones. 

Gibson vs. Hill. 178 

Smith and Hill. 

Deputy Marshal Kelly’s Case. 181 

J. W. Preston. 

Barnes’ Charges of Attempted Bribery. 188 

Alleged Use of Drugs. 194 

Akerman and Smith. 

Alleged Use of Messengers, etc., as Servants. 195 

Akerman and Barnes. 


























335 


PAGE 

Geo. S. Murphey’s Complaint. 198 

Defying Mandate Circuit Court of Appeals. 200 

Holst vs. Railway, Lawrence and Rourke. 

Judgment for Stenographer’s Cost.203 

Gordon Saussy. 

Central Railroad Case. 206 

Lawton. 

Alleged Violation of Law in Drawing Juries. 227 

Green & Gaynor Jury. 227 

Barnes, Osborne, Lawrence, M’eldrim. 

The Branen Jury, Felder.'. 242 

Jury Drawn at Mount Airy, Akerman. 244 

Jury in Miller Case, Adams. 247 

The Peonage Cases. 248 

The Chauncey Case, Felder. 249 

Crawley-McClellan Case . 250 

Osborne, Lawrence, Crawley, McDonald, Toomer. 

Overruling Motion to Direct Verdict in Presence of Jury. 256 

Alleged Violation of Sec. 67 Judicial Code. 257 

Refusal to Nol. Pros. Liquor Cases. 264 

Akerman. 

Beach, Carter, Gray and Yaryan Cases. 267 

Lambdin, John W. Bennett, Padgett, Gazan, Whitfield and 
R. L. Bennett. 

Beach Case . 269 

Carter Case . 276 

Gray Lumber Co. Case. 279 

Yaryan Case . 281 

Conduct in Cases in Which Son-in-Law Had Contingent Fee. 281 

Akerman, Meldrim, Lambdin, Padgett, Gazan. 

United States vs. Atlantic Coast Line R. R. Co. 290 

S. S. Bennett, Branch, Akerman. 

Dissipation of Bankruptcy Estates. 295 

Felder, Lawrence. 

Statement from Attorney-General’s Reports. 302 

Miscellaneous . 313 

Daniels Case, Electric Supply Co., Ohlsen, Roberts, Street 
Railway Litigation, Thomas vs. A. C. L. R. R., Fees in 
Bankruptcy Cases, Rankin vs. L. & N. 

Conclusion . 317 

Exhibit (Grand Jury Resolutions). 320 






























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